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Health & Safety: Life after Löfstedt
Written by Helen Devery, joint head of the safety, health & environment team Berrymans Lace Mawer LLP
A radical review of health and safety legislation, which looked set to reduce the burden of health and safety regulation on businesses, is now slowly taking shape amongst companies
In March 2011, Professor Ragnar Löfstedt, director of the King’s Centre for Risk Management at King’s College was commissioned by the government to conduct an independent review of health and safety legislation. As well as reducing the burden of regulation on businesses, and in particular the extent to which the regulations had led to positive health and safety outcomes, he was asked to address the extent to which they have created significant economic costs for businesses of all sizes.
His report, Reclaiming health and safety for all: An independent review of health and safety regulation, was published last year, although the implementation of some of his proposals may not happen until well into 2013 and beyond. After a wide consultation and a review of 200 health and safety regulations plus 53 Approved Codes of Practice, Löfstedt concluded that the current regulations are “broadly fit for purpose” and rightly place responsibility on those who create risks although, especially with regard to civil litigation, not enough consideration is given to the actions and responsibilities of employees.
He stated that the concept of reasonable practicability is appropriate to the legislation and should remain at the heart of health and safety legislation to provide for the flexible management of risk. Importantly, he identified that risk assessments are ‘fundamental’ to the management of risk. One year on, we can reflect on its impact and what lies ahead for businesses steering a course through the health and safety challenge.
A ‘headline’ recommendation for the removal of 35% of health and safety legislation through the Health & Safety Executive (HSE) undertaking a programme of sector-specific consolidations (ie. those which relate to one specific sector of industry) with a view to producing one single set of regulations per sector by April 2015. The report recognised the need for further clear guidance from the HSE, to be included on its website, so that the limits and scope of the changes are clear.
Progress: So far we have seen six regulations revoked as being redundant or overtaken by more up to date legislation. The HSE board agreed in September 2012 that 13 legislative measures could be recommended for revocation with implementation and for most of this to be completed by April 2013. Shops, offices, pubs and clubs will no longer face health and safety inspections and from April 2013, thousands of businesses will be exempt from regular health and safety inspections. In future, businesses will only face health and safety inspections if they are operating in higher risk areas such as construction, or if they have an incident or a track record of poor performance.
To provide clarity to businesses on how to comply with requirements for the Reporting of Injuries, Diseases and dangerous occurrences Regulations 1995 (RIDDOR). To also provide clarity on compliance with RIDDOR.
Progress: RIDDOR reporting requirements changed on 6 April 2012 as the trigger point has increased from three days to over seven days incapacitation. An ongoing review has been in place to consider compliance with RIDDOR and to examine whether it is the best approach to recording an accurate national overview of workplace accidents. Anticipated changes to this will be made by October 2013 with an estimated reduction of 70,000 reports per annum.
Exempting the self-employed from health and safety law if their work activities pose no threat to others. This represents a major advance in cutting red tape. The government claims that this will bring UK regulation more in line with other European countries, and cut unnecessary red tape for around one million people.
Progress: The consultation began on 2 August and ended on 28 October. The HSE is committed to implementing this by the end of 2012, although this will require changes to primary legislation.
The HSE is to gain powers to direct local authority health and safety inspection and enforcement, and to become the “Primary Authority” for multi-site national organisations. This will help ensure that inspections are targeted towards the most risky activities and also that a fair and consistent approach to enforcement is maintained across the UK. This should significantly reduce uncertainty as to enforcement in particular.
Progress: This is an ongoing review and it is anticipated that a National Code will be developed and delivered in April 2013. The HSE will use section 18 of the Heath and Safety at Work Act etc 1974 to deliver the policy directive covering England, Scotland and Wales.
Engagement with the EU regulatory process to ensure that law is risk-based and evidence-based. In particular the review recommends that there should be a European Parliament Committee to scrutinise European health and safety regulation.
Progress: This is ongoing with the HSE seeking to influence EU legislation (new and existing). The HSE is due to submit its report to the European Commission by December 2013.
Sensible strict liability and civil procedure rules. It was recommended that regulatory provisions that impose strict liability should be reviewed and either qualified or amended to prevent civil liability attaching to breach. Löfstedt recommended that consideration should be given to replacing them by the more proportionate “reasonable practicability” test when European law does not dictate no-fault liability. The review also suggested that the standard disclosure lists found in the Pre-Action Protocols are being interpreted in an overly restrictive fashion by firms and advisors, encouraging a bureaucratic approach to health and safety documentation which is unwarranted.
Progress: In relation to strict liability, this is ongoing with amendments to the Health and Safety at Work etc Act 1974 proposed in the Enterprise and Regulatory Reform Bill before Parliament in Autumn 2012 but the date for implementation is unclear. With regard to protocols, this is also ongoing with the Ministry of Justice creating a pre action protocol working group and the anticipated although yet unclear end date will be 2014.
So we can see that some progress has been made and is ongoing to give teeth to the recommendations made by Löfstedt.
What this means for business
In practical terms, businesses need to review and consider the practical implications on their organisation. Löfstedt’s review is founded on the basis that regulation should focus on the likelihood of something happening rather than on theoretical/potential hazards. Businesses should assess the risk posed by its work. Low risk businesses, for example office based environments, will have different requirements to high risk businesses such as those involved in construction and manufacturing. The HSE has published online tools to assist low hazard workplaces to comply with health and safety legislation. Higher risk enterprises are likely to require more in depth systems in place and so the approach taken to health and safety needs to be tailored appropriately.
Once risks have been identified, a transparent risk assessment process is key in identifying the actual risks of the business, the likelihood of those risks occurring and the control measures required to reduce the risks. Businesses should also articulate the thought process behind safety systems to demonstrate an understanding of risk.
Of course, key to implementing any health and safety policy throughout your business requires a positive safety culture. Every member of staff must be aware of the risk assessments in place and ensure that they are implemented, from director to worker. Without this, the system will fail.
Employers will need to watch closely those recommendations that might have an impact upon their day to day activities. Any changes to health and safety regulations would be likely to impact on a wide variety of businesses, as will any of the proposed changes relating to the self employed.
The devil, as always, is in the detail and the next few years will see if these changes make an impact to cutting red tape and legislative burdens on business. They do however mark an advent of refreshed and revised legislation which undeniably leans towards a practical approach to safety management, a change which hopefully will be a win for common sense.