A healthy new year?
Written by Peter Davey
February 2012
Following publication of the long awaited Löfstedt Report, will Cameron keep his resolutions when it comes to health and safety reform? Peter Davey considers the arguments
David Cameron’s stated New Year resolution to kill off the health and safety “monster” – a culture he accused of strangling British business – is certainly striking, but it’s not new. Many in the industry recall similar promises at various points under New Labour to reduce the burden on small business; veterans recall reviews under John Major.
“I seem to remember [the late former minister] Eric Forth saying the same things back in 1990,” remarks Roger Bibbings, occupational safety adviser at the Royal Society for the Prevention of Accidents (RoSPA).
The reality, though, has rarely lived up to that promise. The test for Cameron’s, as with all resolutions, is whether it lasts. The latest government announcements, including proposals to cap lawyers’ fees in small personal injury claims and to meet insurers to discuss what they require from insureds, come on the back of the review by Kings College professor Ragnar Löfstedt at the end of last year. His proposals were largely accepted by the government, leading to various promises: a review of strict liability offences (where companies are held liable even if they’ve done everything practicable to safeguard employees); the removal of up to a million self-employed workers from the scope of health and safety regulations; and, most strikingly, a 50 per cent cut in the number health and safety regulations.
“Those kind of figures suggest we will be seeing something like a bonfire of health and safety regulations,” says Phil McCabe, spokesman at small business group the Forum for Private Business. Others, though, are less convinced. Take the reduction in regulations, for example. In fact, this is more a question of consolidation than elimination, and even those who are generally positive about the proposals reckon this has been overplayed.
“The idea of simplification of regulation is great but that has been the mantra of governments as long as I’ve lived. When you let at what is actually being removed it doesn’t amount to very much at all,” says Dr Brian Newbury, technical director at health and safety training provider Santia and former Inspector for the Health & Safety Executive (HSE). Much of the change is about brigading content, bringing regulations together in one place.
“Overall it is likely to be more about format than substance,” agrees Richard Jones, head of policy and public affairs at the Institution of Occupational Safety and Health (IOSH).
Similarly, the impact of the proposals for the self employed are easily overstated; despite union complaints – the Union of Construction, Allied Trades and Technicians (UCATT) has been particularly critical – Löfstedt’s report is clear this is only to apply where there is no risk to others. The target is accountants, rather than independent construction workers, he says.
The report claims this would still benefit about one million people. Bibbings, though, isn’t persuaded. “At the moment if you are a low risk worker working alone in theory you have to do an assessment of whether anything is needed to ensure health and safety but if you don’t need to do anything the law in effect is silent,” he points out. “Certainly no one is going to come round and inspect you in your own home.”
The suggestion that one million will see a real difference is a “conjuring trick”, he concludes. In fact, it may even add to the burden facing them, since those workers in theory must now do some sort of assessment to work out whether they are exempt or not.
Not surprisingly, then, that for some the report was a disappointment overall. “While providing some thought-provoking ideas we see it as a bit of a missed opportunity to instigate real change in health and safety enforcement action,” says Andrew Bennett, a specialist in health and safety law in Eversheds’ Regulatory group.
“Many hoped that the report would bring wide, sweeping changes to regulations, but it hasn’t done that at all,” he says. Instead, “minor and unused” regulations are to be scrapped while the case law remains the same and people are left waiting until June 2012 to see the effects of the planned review of all codes of practices to health and safety regulations.
Real changes
Of course, some proposals will have an impact. Löfstedt himself, for instance, admits he’s not proposing a revolution; his report early on clearly states there are no grounds for a fundamental overhaul of health and safety law. However, while the law might be broadly reasonable, sometimes its interpretation and application is not, and Löfstedt’s proposals could help address that.
Take the revisions to strict liability, for instance. “A lot of the bureaucracy businesses attach to health and safety is driven by a perception of a compensation culture, whether well-founded or not,” points out Kevin Bridges, partner and regulatory lawyer at Pinsent Masons. “Companies believe that if they don’t manage the trivial risks there is a risk of being sued.”
The proposals for fewer strict liability offences and removing strict liability for civil (as opposed to criminal) legal action on those that remain could help here – although much will depend on how the changes are implemented. Similarly greater clarity on the Woolf lists (the list of documents companies are advised to provide in the disclosure process when defending a personal injury claim), could reduce unnecessary work.
The report confirmed earlier findings that consultants advised businesses to keep large numbers of records in case they are taken to court, that some claims handlers were using the lists as definitive, and that some insurers are said not to contest a claim if all the paperwork is not in place on the basis that it cannot be defended. “It seems in some instances unfounded cases are settled just because not every I is dotted and T crossed,” says Jones.
Again, however, what this might look like in practice is as yet unclear. Certainly on the face of it, it’s hard to see how having fewer records will work to a company’s advantage when it does come to defending a claim, according to Phil Bladdon, head of liability risk management at QBE Insurance. “The idea that you can’t defend a claim if you haven’t got the records is wrong. You can – but it certainly puts you on the back foot,” he says. “Ultimately, judges are faced with an injured party whose version of events contradicts your own. It’s down to who presents the most compelling case in court and the reality is that insurers are not keen on going to court because judges tend to find in favour of an injured party in front of them.” As with other proposals, it could help, but it’s perhaps too early to say exactly what impact the changes will make. As Bladdon says, “The devil as always will be in the detail.”
Looking abroad
Meanwhile, however, a number of factors argue for not getting carried away. First, ongoing changes outside the review’s scope may do little to help businesses cope with health and safety.
There are signs, for instance, that budget cuts at the HSE, mean it is pulling back from its advisory functions to concentrate on enforcement. Its telephone advice service, for instance, has been scaled back with enquiries and RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations) reporting redirected to the website in most instance. That’s likely to add to the burden for those that relied on the one-to-one contact with the HSE to establish, for example, whether an incident needed to be reported at all.
“It makes it more and more difficult for smaller organisations,” says Newbury. There are also cost recovery proposals due to come in during April. These allow the HSE to charge for inspections and any enforcement action where there has been a material breach of health and safety regulations – not just in cases where this leads to prosecution. The HSE’s hourly rate is to be £124 – affordable for bigger businesses, but potentially an issue for smaller ones.
“If every time they get a visit from the HSE it decides to write a letter of advice, that could mean a bill for around £750 after every visit,” warns Bennett.
It also means companies are likely to be more reliant on health and safety consultants for advice, but whether those they chose will have the competence to ensure they take a proportionate approach remains questionable, despite the new Occupational Safety Consultants Register.
“It’s gone some way to rectify the problems but whether it is having a meaningful impact on the competence of consultants and advice yet I don’t know,” says Alistair Kinley, partner at lawyers Berrymans Lace Mawer, which works mainly for insurers and their insureds. More fundamentally, however, there’s only so much the government can do on its own.
Löfstedt notes analysis that 41 of the 65 new health and safety regulations introduced between 1997 and 2009 originated in the EU. It can be argued that many of these might have been developed by the UK anyway, and that the real problem is not so much European legislation as “gold plating” that sees this country over-zealous in its implementation. However, Löfstedt says he found little evidence of the latter, and whatever UK governments might or might not have done in the past, greater influence at an EU level is vital for the future to ensure a risk based, proportionate regulation – and particularly important given the Europe-wide health and safety review planned for 2013.
“Increasingly as more and more health and safety regulations coming into the UK are being based on EU directives we need to influence the process,” he explains. “The crucial message for me is that we need to be proactive in Europe.”
Unfortunately, another big story of last year that continues to make itself felt this one – the bust up over British involvement in plans to save the Euro – may not make that any easier. Cameron may discover that even if he manages to keep his New Year’s resolution, the health and safety monster is a difficult one to kill.
