Following my previous blog post, it’s time to further develop some thoughts on the Löfstedt Review and the issues surrounding it.
What made the HSW Act and the post-Robens architecture different from the earlier Factories Act law was not just its goal setting nature, bounded by “reasonable practicability”, but its attempt to describe the essential ingredients for arriving at and sustaining safe systems of work in an organisational setting.
In other words, it was not just a long list of dos and don’ts related to particular hazards. In a suitably general way, it set out the people/policy/procedures needed to ensure that hazards were routinely identified, risks assessed, appropriate controls applied and refined – taking into account advances in knowledge and lessons from operational experience.
Thus, where earlier law had sought only to prescribe measures to be taken in various (actually quite limited) settings, the 1974 Act – later augmented by the Management of Health and Safety at Work (MHSW) Regulations – tried to indicate what employers needed to do to be able to work this out for themselves, using risk assessment and supported by competent people/advice, consultation with workers and so on.
In theory, regulations and guidance introduced later to regulate specific risks and activities were designed to support this underlying core. In reality, however, what we now have is architecture of law that is actually quite untidy, incomplete and is not easy to understand in detail without going on a training course and/or reading quite a lot of guidance! (This is just as true, of course, of law relating to other aspects of business such as employment, tax, planning, environment etc. Most business owners/managers do not read raw, undigested health and safety law but refer to guidance or seek professional advice.)
And, of course, law and guidance on their own provide only part of the answer since legally-required systems and risk control measures alone (even when supported by detailed requirements) are not enough to guarantee desired outcomes.
To ensure the “fine fit” between systems/standards and operational reality you also need an effective health and safety culture. We also need effective systems of promotion, education, training, advice, and support to enable smaller businesses particularly to respond effectively. And we also need enforcement to deal with the criminally non-compliant. Good law is clearly necessary but it is far from sufficient to deliver safe and healthy working conditions.
The challenge I believe Professor Löfstedt faces in conducting his review is not only to show how we can return to the essence of the Robens vision, stripping out a lot of the confusing duplication and overlap of duties in the different sets of regulations (without reducing essential protections), but how – in practical terms – we can deal with the challenges smaller firms in particular face in responding to goal-setting law.
For example, it is just as important that his team looks at other issues like the overall health and safety support system for SMEs in the UK and what can be done to make this more effective and coherent. He may also like to look at the role of third party semi-regulators such as clients, main contractors, insurers, assurers etc., and perhaps take a look at the case for some sort of rapid, independent appeal process to deal with any incidences of over-the-top requirements that they might impose.
The Government will insist, with justification, that any proposals pass what is called “the small firms test”. There is continuing debate about whether there really is some sort of size threshold in today’s business below which ideas about formal risk management have no meaning in practice. It is often said that small firms “run” their businesses, whereas large firms “manage” them – and small firms are not just large ones that haven’t got big yet!
What we and most other stakeholders in the health and safety system continue to argue is that it is the level of risk to workers (and others) and not the organisation’s size that must be the guiding principle. So Prof. Löfstedt and his advisers need to begin at the beginning and consider if we do indeed have a clear set of goal-setting risk duties in law which reflect the different elements in the risk management challenge, and which are applicable to all organisations. At present these are scattered across the top of the legal structure and do not flow logically downwards and outwards in other subsidiary law and guidance. Some, like risk assessment, are repeated at several levels. Other really important ones like investigation and organisational learning from incidents are not very clear at all.
So if they are to approach their commission professionally, what Professor Löfstedt and his colleagues will need to consider at the outset is whether current risk management duties in law are both understandable and truly “scalable” in different settings. If there are gaps, then these need to be identified, together with ideas as to how they might be filled in the most appropriate way.
Only then will it be meaningful to look at how to brigade more effectively the large amount of regulatory detail that has accumulated since 1974, and after 1992 in particular. Anything else, such as just trying to return to the letter of particular directives (often unworkable in a UK setting) runs the risk of just tinkering at the edges for political effect and creating even less clarity.
The same breadth of vision and depth of understanding are needed to deal with the final part of the review about the legal position of employers in cases where employees act in a grossly irresponsible manner. Nobody sets out to have an accident but on occasion some employees do, for various reasons, act with disregard for their own or others’ health and safety. Professor Löfstedt and his panel members will need to do their homework here too, avoiding crude behaviourist models of safety management which see accidents as being caused mainly by “unsafe workers” and immerse themselves in excellent HSE publications such as HSG48 Reducing error and influencing behaviour to help get causation factors in perspective.
I would urge all readers to watch this space and feed in their ideas to the review as it proceeds. Email: firstname.lastname@example.org.
Roger Bibbings, RoSPA’s occupational safety adviser