“Putting” safety first with a fundraiser for RoSPA

When it came to organising our annual charity golf day, we decided to choose RoSPA as our nominated charity, because we had worked together on various projects over the last 12 months.

The APIL team prepare to tee off at their RoSPA fundraiser.

Taking place on the famous Ryder Cup Course at the Celtic Manor Resort, we, the Association of Personal Injury Lawyers (APIL) were pleased to host a fully subscribed charity golf day with 22 teams battling to win one of the 17 trophies on offer.

After a shotgun start, the golfers took to the Twenty Ten Course and despite the treacherous winds (and the worse golfing weather ever recorded at an APIL charity golf day), the golfers slowly returned to the members’ lounge, after an enjoyable, yet pretty tiring day out!

The golfers got their breath back over fish and chips and a drink from the bar, just in time for the presentation of prizes, where players gave a warm welcome to RoSPA’s occupational safety adviser Roger Bibbings MBE, who said a few words on behalf of the charity.  APIL’s business support manager Ted Parsons presented the trophies, where we saw the Search Legal team wipe the floor, winning the team Stableford trophy and the individual Stableford trophies for first and second place!  Other winners included Argent Rehabilitation, Compass Law, the Wyvern Partnership and ARAG.

APIL is thrilled to be able to donate the sum of £1,500 to RoSPA, with funding from the golf day sponsors Compass Law. In addition to this, the photographer from the day Phil Hynds is also kindly donating 20 per cent of his takings.

“Putting” into the lead at the Charity Golf Day were the Search Legal team, from left, Andrew Haldenby, Andrew Twambley, Iain Cherry and Alan Nesbit.

Congratulations to all the winners:

Team winner: Search Legal

Team 2^nd place: Compass Law (1^st team)

Team 3^rd place: Argent Rehabilitation (1^st team)

Individual winner: Iain Cherry (playing on behalf of Search Legal)

Individual 2^nd place: Andrew Haldenby (playing on behalf of Search Legal)

Individual 3^rd place: Gareth Crosbie (playing on behalf of Argent Rehabilitation)

Longest drive: Nick Paget (playing on behalf of the Wyvern Partnership)

Nearest the pin: Dave Haynes (playing on behalf of ARAG)

Kathryn Scott, APIL’s events and marketing officer

Did you know that RoSPA has been at the heart of accident prevention in the UK and around the world for almost 100 years? Are you interested in donating to help us fulfil our mission “to save lives and reduce injuries”? Visit www.rospa.com/about/donate/.

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

Goldilocks had the right idea about health and safety

Among the questions posed in his call for evidence which ends on July 29, Professor Löfstedt asked: “To what extent does the concept of ‘reasonably practicable’ help manage the burden of health and safety regulation?”

“Reasonable practicability” as a concept causes much confusion, particularly when it comes to its practical application. However, it is a cornerstone of the UK’s approach to regulation of work-related risk, which has proportionality at its heart.

As is widely recognised, the principle was originally established in the now famous common law judgement of Edwards versus the National Coal Board in 1949. Lord Justice Asquith said at the time:

“Reasonably practicable is a narrower term than ‘physically possible’ and implies that a computation must be made… in which the quantum of risk is placed in one scale and the sacrifice involved in the measures necessary for averting the risk (whether in time, trouble or money) is placed in the other and that, if it be shown that there is a great disproportion between them – the risk being insignificant in relation to the sacrifice – the person upon whom the obligation is imposed discharges the onus which is upon him.”

In other words, for things to be considered safe so far as is reasonably practicable you have to go on trying to make them safer until you reach a point where it is not worth doing more (a point of diminishing safety returns) – AND the risks which still remain must not be too great.

Making such safety judgements with confidence is often quite difficult. If the efficacy of safety measures is uncertain in reducing the likelihood of failure, particularly when the consequences of failure are serious, the result is more likely to be a precautionary “belt and braces” approach.

Critics say the concept of reasonable practicability allows too much flexibility and leads to weak or inadequate precautions being taken. Evidence suggests that, properly applied, reasonable practicability guarantees a high standard of safety. Investigations tend to confirm that few accidents occur where reasonably practicable safety measures have been taken.

The real importance of the concept is that it allows proportionality of response to risk, taking account of different variables. The alternative to this might be a rising scale of specific solutions laid down in law, but this would be cumbersome and might lead to both “under-hitting” and “over-hitting”. Reasonable practicability allows for fine tuning.

Making sound judgements about such risk/cost optimisation can pose real challenges for those firms lacking the necessary skills or access to professional expertise, particularly where options must be chosen from a range of solutions. For example, to take a case related to public safety, reasonably practicable water edge treatments to prevent drowning can vary from little or no action, to shelving and/or planting edges and erecting signage, through to extensive physical barriers at the extreme.

Factors such as population density and foreseeable behaviours can influence the scale of control measures. Those not in the know sometimes find it difficult to understand why maximum measures have been taken in one setting but not in another.

What is useful about reasonable practicability is that it provides a constant reminder to risk creators, risk takers and regulators that safety is not an absolute but always a matter of judgement. At RoSPA we try to express this simply by saying that things need to be as safe as necessary, not necessarily as safe as possible.

On the other hand the concept can give rise to conflicting responses. Firms tend to welcome the flexibility it provides; but when faced with lack of clarity they can then demand official advice about exactly what would constitute a minimal standard of compliance.

There is also confusion about costs. The affordability of specific measures does not relate to the financial circumstances of the individual duty holder. You cannot plead poverty and get away with a lower standard of safety but you can factor in opportunity costs, for example, the longer-term costs of restricting a particular activity or of unintended consequences such as risk transfer.

The fundamental ideas in our health and safety law about risk/cost optimisation originated in the philosophy and practice of radiological protection developed from the 1940s onwards. Here, the core doctrine was “justification, optimisation, risk limits”. In other words:

1. If an exposure is tolerable, is it justified by sufficient benefits?
2. Has exposure been optimised? (I.e. has a point of diminishing returns been reached in terms of further dose reduction?)
3. Have upper bounds been set? (I.e. have suitable dose limits been established?)

This approach can be applied to all kinds of risk decision-making in health and safety.

In practice the workability of a reasonably practicable approach to safety depends on skill in undertaking suitable and sufficient risk assessments. Initially this means establishing if risks are trivial, moderate or high and, if they fall into the last two categories, deciding if control measures are adequate or if more needs to be done. Assessments also enable duty holders to prioritise risks for attention and they can be generic, specific and/or dynamic.

In many cases, those managing risk may carry out very little actual assessment. Much of what is called “risk assessment” is really little more than hazard identification and involves minimal exercise of judgement as to the probability or consequences of failure. If this simple approach enables standard but quite satisfactory solutions to be selected from the overall health and safety guidance lexicon then this does not necessarily matter, particularly if it leads to people adopting sufficiently safe systems of work. On the other hand, there is always a danger of “over-hitting” if the level of risk actually presented by the hazard is trivial and the standard solution selected is substantially more than is really required.

A simple approach to finding the right balance is what I have called “iterative triage” or “the Goldilocks Principle”. (In her search for beds and porridge Goldilocks found beds that were too hard or too soft, and porridge that was too cold or too hot – and this enabled her to find the ones that were “just right”.)

What all this demonstrates are two awkward truths:

1. There is probably no practical regulatory alternative to a goal-setting approach supported by reasonable practicability, especially in the complex risk environment of our contemporary world of work
2. If this approach is to be successful in practice, duty holders need to be suitably informed and competent or have access to suitably competent advice.

Those daunted by the challenges posed by this approach to work-related safety and health often demand regulatory simplification or a return to common sense. The reality is, though, that the risk profile of even apparently benign settings such as shops, office and schools can often be quite varied and complex; the devil is always in the detail and the right solutions are sometimes counter-intuitive.

An approach to regulating and managing risks based on what is reasonably practicable is undoubtedly a more mature approach than one based on prescription, but it only works in practice if the challenges are matched by necessary competence.

Getting health and safety judgements right is not always easy, but if they help to save lives, reduce injuries and safeguard health without wasting scarce resources, then the effort involved is surely worthwhile.

As ever, readers’ comments are invited below.

Roger Bibbings, RoSPA’s occupational safety adviser

Further thoughts on the Löfstedt Review

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: review.healthandsafety@dwp.gsi.gov.uk.

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

Hazard and risk: understanding the difference

In the wake of Lord Young’s Review, and DWP Minister Chris Grayling’s speech saying that from now on the HSE was going to concentrate on “high hazard” industries, it occurred to me that perhaps the minister might have conflated use of the terms “hazard” and “risk”; many people still don’t get the difference.

Hazards: All human activity exposes people to hazards. Hazards are activities or “things” with the potential to cause harm. They can physical, chemical, biological, or even psychological.

Risk: Risk can be understood as the chance that exposure to a hazard will result in harm at some specified level. Hazards with major potential for harm that are well controlled can actually present low levels of risk, because they are well managed and consequently the chances of harm occurring are low. But moderate hazards that are poorly controlled can present significant risks because of the high probability that being exposed to them will result in harm.

So levels of risk (high, medium, low or trivial) can be assessed by looking at the hazard and the probability that it will cause harm.

An example: a circular saw is a hazardous piece of machinery. However, in the hands of a properly-trained operative, the risk of harm would be low (making the activity high hazard but low risk). In the hands of an untrained person, the risk of harm could be very high (making the activity high hazard and high risk).

When allocating resources, decision makers have to consider small numbers of people exposed to high potential hazards and larger numbers of people exposed to lesser hazards – but which can actually result in a greater burden of injury.

In practice, political judgements tend to be skewed towards high hazards with the potential for activities to result in death or life-changing injury, rather than longer-term and more chronic forms of harm.

Lord Young’s Review

RoSPA has been keen to try and make some sense out of Lord Young’s ideas about managing health and safety in what he terms “low hazard” workplaces such as “offices, shops and schools”. They may not have the obvious kinds of harmful energies found in manufacturing, extractive, transport or construction settings but there are obviously still health and safety issues in these environments that need to be addressed.

For example, even small, service-based firms which might at first glance seem quite safe will certainly have significant issues such as fire, occupational road risk, etc. – not to mention issues such as slips, trips and falls, stress and the possibility manual handling injury as well as the potential for threats and violence.

On top of that, there are likely to be facilities management issues such as safe access and egress, safe cleaning, safe storage, safe vehicle parking, lifts, gas and electrical safety, and possibly asbestos and legionnaires’ disease problems. There may be building maintenance and construction, design and management activities too. All these issues need to be addressed and managed safely.

If health and safety is built into an organisation’s ethos, from the boardroom to the shop floor, this kind of safety management should come naturally, and will be relatively straightforward. There should be no burdensome red tape: health and safety is not synonymous with bureaucracy, contrary to the beliefs of the tabloid press.

When asked to define “non-hazardous” at a meeting of the CBI Health and Safety Panel, Lord Young accepted there was a need in schools, for example, to deal appropriately with safety in chemistry labs, workshops and other hazardous activities such as outdoor adventure activities. Obviously all these issues need to be addressed adequately but in a proportionate way.

The inescapable fact is that the distribution of the workforce has continued to change dramatically over the last three and a half decades since the Health and Safety at Work Act was introduced. More people than ever work in offices, call centres, shops and so on. There may be fewer fatal and major RIDDOR events in these settings but troublesome minor injury events still happen, and ill health and wellbeing issues have now become more important than accidents. Absence due to work-related ill health is now almost twice that due to accidental injury.

What we have got to help get across to ministers is that it is the risk profile of jobs and not necessarily the hazard profile of work environments that is critical. (After all, low hazard can still mean high risk and vice versa.)

For example, if you work in an office but suddenly have to do a lot of work-related driving your risk profile increases dramatically. Car and van drivers who cover 25,000 miles annually for work face the same risk of being killed at work as someone employed on a fishing trawler. If you are in a customer-facing role you are likely to face threats or even assault. If you work long hours in a call centre you may face stress and ergonomic problems such as musculoskeletal disorders. If you work next to poorly maintained air-conditioning equipment there is a danger of legionnaire’s disease and so on.

So it is not just a question of your proximity to the traditional forms of “high hazard” found in manufacturing, agricultural or construction settings. Many of the issues which cause accidents at work are in fact common to both industrial and non-industrial environments, particularly slips and trips, and manual handling injuries.

We need to be clear that health and safety management is not just relevant to traditional industries. Almost every kind of work has its issues and if they are not properly managed and regulated, people will be hurt and resources and business opportunities will be squandered.

Roger Bibbings

RoSPA’s Occupational Safety Adviser

RoSPA’s reaction to the DWP minister’s speech

Like me, many of you will have been considering the announcement made by Department for Work and Pensions minister, Chris Grayling. I attended the Round Table event on March 21 with key players from the health and safety community, to find out more about the future of health and safety. Called “Good Health and Safety, Good for Everyone”, it outlines a series of steps to be taken by his department.

He said that proactive health and safety inspections by the HSE (Health and Safety Executive) would be a cut by at least a third, with future targeted inspections focusing on “high risk” locations, such as major hazard facilities and on “rogue employers”. In future, such rogue employers would have to pay the cost of HSE investigations into their activities (fee-for-fault) if these showed them to be in breach of health and safety law. His statement also covered the successful launch of the Occupational Safety and Health Consultants Register (OSHCR) and the simplification of risk assessment for SMEs via a new online advice package for small and “low risk” employers.

And he announced that there is to be a(nother) major review of health and safety law by Professor Ragnar Lofstedt of Kings College London, with a view to simplification and the scrapping of unnecessary requirements and clarifying “the legal position of employers in cases where employees act in a grossly irresponsible manner”.

At one level there seemed to be a shift in tone towards recognition of the importance of health and safety to people and to business success. On the other hand much of what Mr Grayling said seemed to focus on accidents rather than the much bigger problem of occupational health. And he repeated many of the ideas underpinning the Lord Young Review such as “changing the health and safety culture that causes so much frustration in Britain today”.

What was interesting, though, was the strong emphasis Mr Grayling put on levelling the playing field for all businesses through the HSE getting tough with offenders. The flip side of this, of course, is that the Government is cutting the HSE’s resources by 35 per cent by 2014-15. Inevitably this will put them in a much more reactive position with fewer resources devoted to proactive interventions, whether through inspection or education.

The announcement contained the news that in the future, proactive inspection will cease in sectors such as agriculture, quarries, and health and social care where it is not thought to be effective, and that in many “lower risk” areas it will end altogether. The HSE is also having to scale back much of its information and awareness-raising work.

The minister repeated the key message in Lord Young’s review (with which we all agree of course) about the need for proportionality in relation to risk but he did not really spell out the cost of health and safety failures to the UK economy – up to three per cent of GDP – nor indeed the massive business case for good health and safety performance at company level and its potential contribution to business recovery.

He also seemed to reflect some of the other erroneous assumptions underpinning that Review, namely that businesses in the service sector are mainly “low hazard” and thus need only a light touch and that health and safety performance is mainly about reducing the reportable injuries figures (and not the much greater problem of cutting underlying work-related mortality and morbidity).

Focusing on RIDDOR notifiable injuries as the prime performance indicator tends to obscure the true extent of work-related death, injury and ill health including, for example, work-related road injuries (which are about five times higher than those recorded in RIDDOR), deaths due to work-related health damage (particularly from asbestos where many thousands more are expected to die with no immediate decline in sight) and the huge toll of work-related ill health (due especially to musculoskeletal disorders and stress).

And the suggestion that health and safety risks are less significant in “low hazard” workplaces while true in one sense, tends to gloss over the fact there are still lots of important issues that need to be properly managed in these settings: for example, in schools, shops and offices.

One of the issues which seems to be exercising industry most is the idea of the HSE adopting “fee-for-fault” cost recovery. This is not a system of administrative penalties related to the seriousness of any breach, but is designed to recover the costs involved in serving improvement notices needed to remedy breaches in order to control significant risks.

In many ways it simply follows the long-established principle in the environmental field that the polluter should pay. On the other hand, concerns are being raised in various quarters about whether this system might skew the HSE’s operational priorities or adversely affect its relationship with duty holders. And there could well be accusations in the popular press that the HSE is just chasing employers to raise revenue for the Government.

There are dangers here of course: the HSE will need to feel its way. But in my view fee-for-fault cost recovery is not the real issue. The far greater challenge for the health and safety community is how to come up with creative ideas to help make good the reduction in the HSE’s awareness-raising and educational role.

The Government’s critics seem to be focusing all their commentary at present on the HSE’s investigation and enforcement capacity (for example, the BBC R4 programme “File on 4” on March 7).

Enforcement is critically important. But my own view is that the fundamental value of education and awareness-raising in reducing casualties at work is being overlooked. Some have only ever seen it as a bolt-on to the HSE’s regulatory role while many of their critics take the view that it is not really effective anyway.

The HSE already works with a range of partners but we at RoSPA believe that developing an even closer partnership with us, the groups, the trade associations and the various professional bodies would produce great results and also avoid much of the bureaucracy and overkill which the Government fears can result from an unprofessional approach.

So while obviously we may need to debate issues arising from reduced inspections, the new fee-for-fault system and the Loftstedt review, filling the awareness-raising, information and advisory gap is actually critical too.

If we are to sustain the improvements in performance which have been made in recent years, all of us in the health and safety community now need to work together to boost a proactive approach to health and safety. People’s lives and health depend on it.

Roger Bibbings

RoSPA’s Occupational Safety Adviser

Are you costing your accidents?

Britain has a relatively good health and safety record yet annually there are some 1million injuries and 2.3million cases of work-related ill health in UK businesses, leading to around 40million working days lost each year.

The costs of health and safety failures

The cost to British employers is estimated to be in the range of £3.9 to £7.8billion per annum. The Health and Safety Executive (HSE) suggests that £780 to £4,310million comes from accidental damage to property and equipment (figures from the HSE’s Economic Advisers Unit, 2004). And these figures exclude the costs of work-related road accidents which outnumber conventional workplace accidents by a factor of two to three.

Insured and uninsured costs

Most organisations do not know what accidents and ill-health really cost them in time and money. Few bother to examine costs if and when they investigate accidents and incidents.

It is often assumed that most accident and incident costs are recoverable through insurance. This is a dangerous misconception. The HSE estimates that the ratio between insured and uninsured costs lies in the range of £1:£8 to £1:£36.

In other words, for every £1 recovered from insurers at least £8 is being lost entirely.

Uninsured costs can include:

• Lost time
• Sick pay
• Damage or loss of product and raw materials
• Repairs to plant and equipment
• Extra wages, overtime working and temporary labour
• Production delays
• Investigation time
• Fines
• Loss of contracts
• Legal costs.

Accident and ill-health costs can be likened to an iceberg: costs that are recoverable are visible but those that are unrecoverable are hidden below the waterline and are many times greater.

Other key points to consider

• Losing key personnel due to injury or ill-health can be critical to meeting contract deadlines
• In smaller organisations which have little reserve capacity, a serious accident or an incident such as fire can spell the end of the business altogether
• Loss of business reputation due to accidents and enforcement action can lead to loss of new or repeat business or loss of new investment
• Accidents can damage workforce morale and affect productivity
• Serious accidents leading to injury may be quite rare but minor incidents leading to costly damage are happening most of the time
• Accident claims invariably mean higher insurance premiums or insurance cover actually being refused.

If you think safety is expensive, try having an accident!

Roger Bibbings

RoSPA’s Occupational Safety Adviser

Can the punishment ever really fit the crime?

On February 16, Cotswold Geotechnical Holdings was the first company in the UK to be convicted of the new offence of corporate manslaughter which came into force in April 2008.

The case was brought following the death of a 27-year-old geologist, Alex Wright, who was investigating soil conditions when a deep, unsupported trench on a development plot in Stroud collapsed onto him in September 2008. The firm was sentenced at Winchester Crown Court and was fined £385,000 payable over 10 years.

We hope that this conviction will make firms with a lax approach to safety take action to put their own houses in order. The fine was imposed keeping in mind the size of the company which only employed 12 people. Had the organisation been larger the fine would undoubtedly been very much higher. But nonetheless it ought to make less safety conscious firms – both large and small – sit up and think.

The new corporate manslaughter offence was introduced to close a gap in the law and to make it possible to prosecute organisations for unlawful killing due to gross corporate failings. Up until three years ago fatal accidents due to corporate negligence – particularly in large organisations where it was difficult to identify a “controlling mind” – could only really be dealt with effectively under health and safety law, i.e. for a breach of the organisation’s duty to control risks to health and safety.

Given that this first case involved a needless death in a smaller firm, we will not see the full potential of the law and its associated penalties until there is a successful prosecution of a larger organisation. But it should still prompt those in senior positions in all types of organisation to check that their own house is in order.

On the other hand, the Corporate Manslaughter and Corporate Homicide Act is designed to bring prosecutions in the very worst cases resulting in work-related death – those in which health and safety standards have fallen far below what could have been reasonably expected. So if directors can assure themselves that their health and safety management systems are effective they have much less to fear.

It is important to remember that it is not individuals who are liable under this law. Prosecutions for corporate manslaughter will consider management systems and practices across the whole organisation. But the behaviour of those in senior positions will be scrutinised closely and a substantial part of the health and safety failure must have been at a senior level.

Penalties can include unlimited fines, remedial orders and publicity orders imposed on the business. But it should be noted that corporate manslaughter prosecutions can be run alongside others for health and safety offences and these can include the prosecution of directors for “consent, connivance and neglect”.

When the Government’s Sentencing Advisory Panel (SAP), chaired by Professor Andrew Ashworth, consulted back in 2009 on new sentencing guidelines to accompany CM, I highlighted some of the dilemmas involved. They wanted views on how best to use the sentencing provisions in the new Act to promote consistency while also properly reflecting the seriousness of the offending involved.

One of the things I drew attention to at the time was the spill-over effect that large fines may have, punishing not just the organisation but also indirectly its employees (for example, through possible consequential job losses), its shareholders (who in reality may have had little or no control of management processes that led to the deaths concerned), its customers (who might be made to bear the cost of subsequent price increases) or the workforce and the wider public who might continue to be at unacceptable risk because funds for improving safety had been used to pay a large fine.

It was Lord Thurlow, an 18^th century Lord Chancellor, who opined famously that organisations have “no soul to be damned and no body to be kicked”. I am no lawyer but to me the idea of a crime that is purely corporate – a collective offence due to the failure of many otherwise generally blameless individuals – is as strange as it is rare.

Punish an organisation and you do end up punishing real people, if only indirectly – and then quite often the wrong people. Yet organisations are owned by, are made up of, and are controlled by real people, often in positions of authority. Obviously there is no one-size-fits-all solution and the sentencing options in the CMA do seem to offer the option of “mixing and matching” fines, adverse publicity and remediation. There is a particular problem with publically owned organisations where fines simply represent a re-circulation of funds back to the Treasury.

So is there not also a case for imposing penalties such as prohibition of individuals from being directors; restricting their bonuses for a fixed period, or suspension of senior managers without pay? Other options might include: imposing suspended sentences pending remedial action such as undergoing health and safety training or some sort of penalty point system as on the driver’s licence model; fixed penalty notices for specific offences; or perhaps some sort of Community Service Order linked to health and safety.

What’s your view? Can punishment really be made to fit the crime when people and the organisations they inhabit have got it very badly wrong on health and safety?

Roger Bibbings

Occupational Safety Adviser