A sense of proportion – exposing the myths

The endless drip, drip of silly stories about “elf ‘n’ safety”, particularly in the tabloid newspapers, is a problem that just does not seem to go away. Not only does it lend support to the general idea that efforts to prevent accidents have gone too far (when accidents are actually going up in areas like the home) but it gives legitimate safety a bad name.

Children being banned from playing conkers unless they are wearing goggles is just one of the many myths that have been highlighted as an example of health and safety misuse.

Too often the stories, most of which relate to safety rather than health (I wish people would not use these terms together unless they are actually talking about both), are about some quite trivial risk. Many are apocryphal and others turn out on closer investigation to be not quite as reported. Often it turns out that “elf ‘n’ safety” is being used as a convenient excuse to stop something quite innocent happening when other reasons cannot be found.

The Royal Society for the Prevention of Accidents has continued to call for everyone to adopt a balanced approach to safety.  We stress that safety is not an absolute; it’s all about using good judgement. Our guiding mantra is that “life should be as safe as necessary, not necessarily as safe as possible”.

If a safety requirement looks daft and over-the-top, it probably is. But if there is a risk, even a small one, the basic challenge should be to find a consensus between what would be too much safety at one extreme and at the other what would be too little. Consensus about where these two points lie often enables both those who create such risks and those who are exposed to them to find the middle way.

In our recent submissions to Government reviews of health and safety by Lord Young and latterly by Professor Ragnar Löfstedt, we have called on everyone to have the right to challenge safety or health restrictions which they feel are unreasonable. The Government has given the right to citizens to challenge local authorities which restrict public events unnecessarily. The Health and Safety Executive (HSE) has set up a Regulatory Challenge Panel (RCP) to enable people to take issue with HSE advice which they think is either excessive or inadequate. And more recently the HSE has set up a Myth Busters Challenge Panel(MBCP) to enable organisations or members of the public to seek independent review of safety decisions by non-regulators which they consider are excessive or totally inappropriate. It will be serviced by the HSE and will draw on a pool of experienced professionals. HSE board chair Judith Hackitt will chair the panel and HSE board member Robin Dahlberg will be vice-chair.

The HSE's new Myth Busters Challenge Panel has been given the thumbs up from RoSPA. Its aim is to enable organisations or members of the public to seek independent review of safety decisions by non-regulators which they consider are excessive or totally inappropriate.

The new panel has RoSPA’s full support, but it is still “early days”. How often the panel will be called upon to give rulings and on what sorts of issues is not yet clear. It could be argued that it might have been better if this new body had been set up entirely outside the HSE, in order to be seen as completely independent.

In our evidence to Löfstedt, we argued that any safety decision maker, not just the HSE, but any local authority, insurance company, client or even an event organiser, for example, should, where appropriate, have their own such panels or at least be prepared to explain the basis of their decisions if asked to do so.

A recent press release issued by the HSE about the MBCP states: “The panel will look into complaints regarding the advice given by non-regulators such as insurance companies, health and safety consultants and employers and, quickly assess if a sensible and proportionate decision has been made. They want to make it clear that ‘health and safety’ is about managing real risks properly, not being risk averse and stopping people getting on with their lives.”

If it is true that there really is a massive amount of risk averse behaviour out there (although no one has actually tried to measure this) then there is a danger that the panel will be flooded with requests for rulings. To avoid this we have argued that, like the RCP, they should ask complainants to first raise their concerns with the primary decision maker. That way the mere existence of the panel may bring some pressure to bear on hopelessly risk averse people and organisations who insist on precautions being taken to deal with trivial risks.

The difference between the MBCP and the RCP is that the latter will consider complaints about specific advice given by a health and safety regulator such as HSE or a local authority. Complainants are asked to try to challenge that advice locally before approaching the panel, just as they would under existing HSE and local authority complaints procedures. The MBCP on the other hand will be more flexible.

Interestingly, the proforma on the HSE website for making a challenge does indeed ask for complainants to state if they have made contact with the originator of the decision or advice, and what the outcome was. However the cases that are likely to come to this panel will often be where the issue is not as clear cut and where the name of health and safety is being misused. It may, of course, on occasions prove difficult for those doing the background work to track down exactly what has been said and in such cases, the panel will probably just have to pass their opinion on the facts of the case as known to them. They are also likely to consider cases that are received through press stories and correspondence coming into the HSE, but it will be important nevertheless for sufficient investigation to take place to establish the facts about these cases rather than just accepting press reports at face value.

A press release from the Department for Work and Pensions (DWP) announcing the MBCP, listed the HSE’s top 10 silly stories:

• Children being banned from playing conkers unless they are wearing goggles
• Office workers being banned from putting up Christmas decorations
• Trapeze artists being ordered to wear hard hats
• Pin the tail on the donkey games being deemed a health and safety risk
• Candy floss on a stick being banned in case people trip and impale themselves
• Hanging baskets being banned in case people bump their heads on them
• Schoolchildren being ordered to wear clip on ties in case they are choked by traditional neckwear
• Park benches must be replaced because they are three inches too low
• Flip flops being banned from the workplace
• Graduates ordered not to throw their mortar boards in the air.
  

  The DWP has listed the HSE's top silly health and safety myths. Graduates being ordered not to throw their mortar boards in the air in order to avoid risk of injury, is among them.

How this list was arrived at would be interesting to know as well as how many of these cases ever had any basis in fact. Perhaps as their first exercise the panel should say which of these stupidities were ever actually imposed, when and by whom and which are, as the title of the new body says, purely urban myths. Many, like the wearing of goggles to play conkers, never actually happened as reported but have taken on a viral life of their own, for example, as a result of being repeated uncritically by the popular press many times over.  

In contrast to ruling on these sorts of totally over-the–top cases, what is likely to be far more challenging for the panel will be addressing allegedly excessive requirements imposed by ‘semi regulators’ (insurers, clients, assurance bodies etc) to deal with small but nevertheless significant risks.

In the occupational safety setting there seem to be many examples of where clients and others demand more than one belt as well as several braces to deal with problems that can be solved by simple measures. Too many, for example, demand endless repetition of the same safety training when there is no obvious need or proven benefit. And then there are firms, for example, that insist on all staff, contractors and visitors holding the handrail at all times when walking up and down stairs at their premises. Holding the handrail is good practice to help prevent falls, but is not always absolutely essential and it is certainly not a statutory requirement, although what bearing not holding the handrail might have in any civil proceedings for damages for an injury sustained on stairs is hard to say. How will the panel judge between what is good practice from a civil litigation standpoint compared with minimum action needed to comply with statute?

Some of these sorts of issues at the margin between regulatory requirements and good (or best) practice may prove quite tricky and the devil is often in the detail. The MBCP might choose to be quite selective in deciding what sorts of things it rules on. It’ll be a case of suck it and see.

More generally though, the new challenge panel needs to be seen as only a small part of a whole series of steps required to create a more risk intelligent society, as advocated strongly in the Löfstedt review.

A sense of proportionality is key, especially when it comes to tackling the problem of excessive risk aversion itself. It may be giving legitimate action on safety and health a bad name, but it is actually quite a small problem compared with the massive amount of work that still needs to be done to tackle major risks that are not properly controlled in many areas.    

In short, a lot more work is still needed to improve understanding of safety and risk, from nursery school to business school.

Watch this space.

Readers’ comments are welcome and should be emailed to me at rbibbings@rospa.com.

Roger Bibbings, RoSPA’s occupational safety adviser.

The legal landscape governing health and safety is changing – are you prepared?

When it comes to investing in effective health and safety management, it is worth remembering that any failings can be costly. Good health and safety pays, so putting in place control measures and training early on could help you maximise your company’s potential. But if things go wrong, are you prepared for the challenges which may come your way?

Errol Taylor, RoSPA's deputy chief executive.

The Royal Society for the Prevention of Accidents will host a health and safety legal seminar titled Getting It Right When It All Goes Wrong at Prospero House, in Central London, on March 28. The one-day seminar, chaired by RoSPA’s deputy chief executive, Errol Taylor, will feature expert guidance from nationally recognised speakers from top law firms, the Department for Work and Pensions (DWP) and RoSPA. They will speak on the changing legal landscape governing health and safety regulation and enforcement.

A number of key questions will be answered including:

• How exposed to prosecution are you?
• Attitudes to crisis management – how prepared would you be in the event of a major accident?
• Facing the challenges and defence of compensation claims – are you prepared?
• How to use health and safety failure as a springboard for change?

RoSPA’s mission is to “save lives and reduce injuries” by leading the way on accident prevention. As a 95-year-old safety charity, we continue to stress the importance of how good health and safety is an indispensible part of business success. There’s no time like the present to begin tackling potential safety and health issues and making steps towards taking control of your company’s future – especially when trading conditions are tough and financial losses due to accidents cannot be made good through increased sales and turnover.

James Wolfe, deputy director of the DWP, will help delegates untangle the “Red Tape Challenge” by asking: “Does health and safety management get in the way of productivity?” He will also question whether legislative simplification is possible while maintaining standards and will then lay out priorities and the Government’s next steps.

Delegates will also hear from Stephen Climie, a barrister with Outer Temple Chambers. He will lift the lid on what implications the Government-commissioned Löfstedt Review will have on health and safety regulation and inspections. The review confirmed that the present legal structure for health and safety is broadly fit for purpose – and says the challenge now is to embed a proportionate approach to accident and ill health prevention across the entire health and safety system.

Here at RoSPA, we are particularly pleased that Löfstedt seems to have taken on board many of the key points which we highlighted in our submission of evidence, including the simplification of the Woolf records issue – a massive paper chase in many businesses. RoSPA welcomes the report’s proposals for bringing local authority enforcement under the control of the Health and Safety Executive (HSE) and is also pleased that it identifies the very significant influence that third party “semi-regulators”, such as insurers, clients and funders, can have on duty holders.

There is a continuing focus on the health and safety responsibilities of directors and senior managers in the private, public and voluntary sectors. Mr Climie will help delegates to further understand what the first prosecutions in corporate manslaughter are telling us. Together with benchmark guidance on directors’ health and safety responsibility from the Health and Safety Executive and Institute of Directors, the fear of prosecution is serving as an even greater reminder of the importance of ensuring good health and safety practice without being unnecessarily risk averse.

Advice and information will also be at hand on how to cope with the challenges of compensation, led by Frances McCarthy, managing partner and head of personal injury at Pattinson and Brewer Solicitors. She will open up debate on the so-called “compensation culture” – is it myth or reality?

Other speakers will include Chris Morrison, a partner of Clyde & Co, who will talk on working in partnership with your insurer and Dr Simon Joyston-Bechal, partner at Pinsent Masons, who will offer practical tips on the best legal defence measures, as well as the pros and cons of appealing an enforcement notice or defending a prosecution.

There has never been a more important time to have a good public relations plan in place and there is a lot of good work that goes on behind-the-scenes. RoSPA’s head of communications Jo Bullock will share her experiences of managing communications in an ever-evolving media world and the lessons that can be learned from it. She will focus on the dos and don’ts of managing PR during a crisis; the impact of social media and our control over it; and how your actions can impact on reputation and future business.

Roger Bibbings, RoSPA's occupational safety adviser.

And to close the day, Keith Turney, managing director at Central High Rise Ltd, will provide an honest and open first-hand account of how a worker fatality and the subsequent investigation and prosecution affected an organisation and its staff. He will discuss why sometimes a good safety record is not enough and will reveal how the fatality’s causes were analysed.

I do hope that delegates find this health and safety legal seminar helpful. There will be lots of opportunities for people to feed in their views while enjoying lunch and networking. Events of this nature provide a platform from which people can keep up-to-date on important movements in the health and safety sector, as well as learning from others in a bid to improve and develop.

To find out more on the health and safety legal seminar, visit www.rospa.com/events/legal/ 

Roger Bibbings, RoSPA’s occupational safety adviser

Sensible safety and a review of legislation

RoSPA has now submitted evidence to the Löfstedt Review team, in which I urged the members to take a broad and evidence-based approach to its task. I believe that they need to look for practical solutions which could help all businesses, including small firms, to meet their health and safety duties.

We have cautioned against reducing the number of regulations by merger purely for cosmetic reasons and political expediency – which will, in any case, be easily seen through. By focusing on how to help businesses – particularly smaller ones – meet their health and safety duties easily, cheaply and with a minimum of bureaucracy, the review team will do far more for the UK’s economy.

I have advised the team of the danger of making ad hoc and possibly haphazard changes without full consideration of the consequences.

Our submission made a number of proposals for practical measures that could be taken, including:

• Giving lower-risk small and medium-sized enterprises (SMEs) the option of producing simple health and safety action plans based on the combined safety policy and risk assessment template already offered by the HSE
• Encouraging third party “semi-regulators” (such as clients, insurers, investors, and training funders) to implement mediation procedures enabling firms to appeal against what they see as over-the-top requirements
• Looking at lessons that can be learned from what has worked well in other industrialised countries and link this to wider efforts to promote effective health and safety regulation worldwide.

While accepting that there may be a case for removing repetitious duties in certain regulations (such as on risk assessment, information and training), we have urged the team to also look at where there may still be significant gaps in health and safety law (e.g. accident investigation and work-related road risk).

There may be a case for better regulatory housekeeping, but owners and managers in small firms do not read raw, undigested health and safety law. What they need is good guidance and above all competent advisers to point them in the right direction. The Löfstedt team needs to take a wider view of current challenges in health and safety and suggest imaginative solutions.

RoSPA has also urged that the review should encompass analysis of the health and safety aspect of the Government’s Red Tape Challenge and the HSE’s major programme for revising its inventory of more than 1,300 pieces of key guidance.

Health and safety law and standards are important and are essential to safeguard people’s lives and health. The existing legal structure and the underpinning guidance has been based on literally hundreds of thousands of hours of detailed research, development and consultation.

What worries us most about this review, though, is that it is being conducted at a time when the previous consensus of “good health and safety management is good for business” seems to be breaking down in favour of a view that it is a red tape burden on business.

Hopefully, as with previous reviews of regulation, Professor Löfstedt and his colleagues will confirm that it is balanced, well-structured and helps not only to save lives and safeguard health but also boost UK competitiveness.

Information about the review is available at www.dwp.gov.uk and RoSPA’s full submission will be uploaded to the RoSPA website in due course. Since 2007, RoSPA’s National Occupational Safety and Health Committee has been conducting an inquiry into health and safety help available to small firms. Full details are at www.rospa.com/occupationalsafety/adviceandinformation/smallfirmshealthandsafety/inquiry/.

Roger Bibbings, RoSPA’s occupational safety adviser

Untangling the terms of the Löfstedt Review

Following on from my previous blog – Hazard and risk: understanding the difference – in which I talked about the Lord Young Review, the time is about right to look at what is happening next.

Chris Grayling, employment minister for the Department for Work and Pensions, has commissioned Professor Ragnar Löfstedt, director of the King’s Centre for Risk Management at King’s College London to chair a team of six people to consider the opportunities “for reducing the burden of health and safety legislation on UK businesses while maintaining the progress made in improving health and safety outcomes” and to report by this autumn. The team will comprise politicians, business people and employee representatives.

Professor Löfstedt’s review will be supported by a small team of DWP officials and will focus primarily on the approximately 200 statutory instruments and associated approved codes of practice rather than the Health and Safety at Work (HSW) Act itself or other primary legislation.

The professor has called for evidence from a range of stakeholders including government bodies; employers’ organisations; employees’ organisations; professional health and safety bodies; and academics. They will consider:

• The scope for consolidating, simplifying or abolishing regulations
• Whether the requirements of EU Directives are being unnecessarily enhanced (“gold-plated”) on translation into UK law
• If lessons can be learned from comparison with health and safety regimes in other countries
• Whether there is a clear link between regulation and positive health and safety outcomes
• If there is evidence of inappropriate litigation and compensation arising from health and safety legislation
• Whether changes to legislation are needed to clarify the legal position of employers in cases where employees act in an irresponsible manner.

RoSPA is feeding ideas into the review, but it is my opinion that the professor and his colleagues will need to commit to doing a lot of homework if they are to understand fully the background to what they have been asked to do. And if they do not co-ordinate closely with other “simplification” initiatives that are underway there is a real danger of confusion.

These initiatives include a wider project by the HSE looking at how it organises its overall range of guidance, including on health and safety management, as well as another Government initiative asking the public for ideas on how to cut so-called “red tape”, including in health and safety. Logically any attempt to revise and restructure the HSE guidance lexicon should perhaps await the outcome of the Löfstedt review.

Health and safety law is important. People’s lives and health depend on it. Any review needs to be undertaken professionally and carefully, without being rushed. It needs to be strategic, evidence-based and must carefully consider previous reviews of regulation and the results of consultation on particular regulations.

In particular Professor Löfstedt, members of his panel and DWP officials will need to go back and understand in some detail the history and evolution of our system of health and safety law and guidance, as the past and present are intimately connected. Core ideas in our law and guidance system about health and safety management go back a long way – to before the Robens Committee including, for example, the report of the Joint Industrial Council on Accident Prevention of 1956! Ideas about how to regulate and manage health and safety issues have an enduring DNA.

In theory there is supposed to be a logical flow from the general duties of care in the HSW Act, through the Management of Health and Safety at Work Regulations (MHSWR) to other specific hazard and sector related regulations. Guidance documents (which are what people actually read) then support all this. But, as everyone now admits, the elegance and logic that were envisioned in the 1972 Robens Report have been corrupted over time by adaptations to implement EC directives, and so on. Key duties like risk assessment, training and information are repeated at number of levels but others like monitoring and learning from incidents are weak if not missing altogether.

In terms of transparency and proportionality, health and safety law and supporting guidance needs to be focused on the “big” issues. In some hazard areas like chemicals and physical hazards, where the impact of an accident or incidence of ill health is immediate and visible, the law is well developed. However, in other areas such as those involving psychosocial risks (ergonomics, stress, violence etc. which affect millions of workers) it is still quite vague.

And, worryingly, huge areas of hazard like work-related road safety (more people are killed while at work on the road than in all other workplace accidents) are addressed only by the most generic guidance.

Arguably the balance between what is covered in regulation and what is addressed in guidance could be readjusted. On the other hand, options here have been limited. Much of the problem, in my view, has been due to our inability in the UK to use Approved Codes of Practice (ACoPs) to transpose EC directives. Robens had high hopes for ACoPs since they were intended to provide both authoritative advice and flexibility; but this vision was not shared.

On one side the TUC always thought ACoPs were too weak. The CBI on the other has always tended to view them as prescriptive regulation by the back door. And the European Commission refused to accept them as a vehicle for transposition of directives into national law anyway.

This whole debate ought to be revisited, and Professor Löfstedt’s review is the ideal time to do so.

This topic is too big and too important to squeeze into one short blog post – so stay tuned for part two. And don’t forget to join the debate – open and honest discourse on all sides is the best way to produce a national health and safety culture that the UK can be proud of.

Roger Bibbings, RoSPA’s occupational safety adviser