THOMPSONS SOLICITORS’ RESPONSE - February 2008
About us
Thompsons is the UK's most experienced trade union and personal injury firm, campaigning for the rights of workers from offices nationwide and this website. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time the firm will be running 70,000 claims.
Principle points made by Thompsons in its response:
- Unionised workplaces are safer workplaces.
- Litigation forces employers to address health and safety issues.
- Insurance industry plays a central role and could play a greater role in health and safety issues.
- There should be zero tolerance of accidents at work.
- The HSE is hampered by a lack of resources.
- Ultimate responsibility for health and safety should rest with the directors of a company.
- The government should lead by example as an employer and a procurer of services from suppliers.
- Health and safety should not been seen as a negative issues by employers or a burden. The real burden to business should be seen as having to cope when an employee is injured.
- Unions should have a right to demand inspection of a workplace they know to be dangerous.
- Insurers should have a duty to report any company they know to be operating unsafely to the Health and Safety Executive.
Q1. Do you believe the British health and safety system achieves the right balance between protecting workers, and the demands it places on employers and others?
No. We believe that the balance should be in favour of the worker rather than the employer.
No employee wants to get injured. No employee has an incentive to get themselves injured.
The employer’s incentive is to maximise profit and that places them in potentially direct conflict with issues of health and safety where they get in the way of achieving that aim.
It is a nonsense to suggest that small businesses are overburdened by regulation on health and safety. Many of the issues that have to be dealt with are a matter of good housekeeping and good practice.
The Hampton Review of regulatory inspections enforcement (Reducing Administration Burdens: Effective Inspection and Enforcement HM Treasury, March 2005) referring to the Natwest 2003 survey on the amount of time spent by small businesses on government regulation and paperwork, indicated that for businesses of 50-250 employees the amount of time spent was around 1 hour per month (15 minutes per week per person). For smaller businesses employing nine persons it amounted to around four hours per person per month (1 hour per week).
If these figures are right (and they may well be an overestimate) they are hardly excessive and are likely to include time spent on all regulatory matters including non health and safety matters such as employers liability compulsory insurance renewal documentation. What they do not indicate is anything that could be described as a burden on business.
Putting up a copy of the employers insurance cover note for employee liability is a reassurance to employees and is hardly either administratively or financially going to break the back of a business. Carrying out a risk assessment in connection with a new activity is common sense so as to assess the potential dangers and avoid employees losing time off work if they are injured.
Good business practice is to anticipate a problem and avoid it becoming an issue rather than wait for that problem and then react.
There is, in part due to insurance stoked fears of a compensation culture (which we are pleased to see are debunked in paragraphs 49, 50 and 51 of the consultation document), evidence of excessive cautiousness by employers. We see evidence of absurdly detailed risk assessments for minor hazards which could have been significantly reduced in size and complexity for the issue they were seeking to address.
We also see evidence of employers engaging consultants to advise on health and safety whose advice is either inappropriate, excessively complicated or plain wrong. We suggest below that there is an urgent need for those operating as health and safety consultants to be registered and made subject to a review.
We believe that prosecution or real fear of prosecution is key.
Sadly it is our experience that it is only when forced with litigation that companies are forced to deal with issues that they would otherwise have chosen to ignore. There is a virtuous circle created by litigation which raises the profile of a condition which comes to the knowledge of insurers who enforce better systems with employers.
The Health and Safety Commission published their report in 2004 “A Strategy for Workplace Health and Safety in Great Britain to 2010 and Beyond”. The report stated that “enforcement or the fear of enforcement is an important motivator for some employers. Our evidence confirms that enforcement is an effective means of securing compliance and promoting self compliance”.
The number of back injury cases we see amongst nurses has dramatically fallen, we would say in part due to litigation having forced employers to introduce proper systems but also due to the Manual Handling Regulations.
Thompsons would cite employers far greater awareness of latex allergy as having come about as a result of litigation. There are alternative materials to latex and increasingly employers are offering them.
Vibration White Finger was not officially recognised for many years and it was only because of litigation by the unions that it was recognised and substantial work done to dampen vibration in machines and on tools.
Deafness was until the litigation in the 1970s seen as something that was inevitable for those working in industry. Union litigation and HSE guidance has led to a substantial drop in deafness claims through quite simple ear protection being made available.
We believe that with more resources the Health and Safety Executive would find substantially greater breaches of health and safety regulations. There are simply not enough inspectors with the result that there are not enough visits to the workplaces meaning that employers can pay lip service to health and safety, safe in the knowledge that the chances of a visit from the HSE is statistically remote.
Recent job losses and expenditure cut backs will significantly reduce yet further the capacity of the HSE to be, in practice, anything other than reactive.
Thompsons understands from the trade union Prospect, which represents HSE inspectors, that a 10% cut in staffing has resulted in the organisation being under spent by around £25 million. We consider that the level of under spend when people are being injured and even dying at work to be a scandal.
The effective cut backs at the HSE have meant that initiatives started when the organisation enjoyed more funding have either been abandoned or run down. The highly innovative (and we would suggest highly useful project) Workplace Health Connect which was a private confidential service designed to give free practical advice on workplace health and safety and return to work issues to smaller businesses in England and Wales has been abandoned.
Documents disclosed by the Centre of Corporate Accountability under a freedom of information request indicates under prosecution of offences by around 300%. The then Department of Constitutional Affairs’ own statistics showed that the infrequency of prosecutions means that a Magistrate is only likely to hear a case involving health and safety regulatory breaches once very fourteen years. We do not accept that that level of prosecution reflects the real problems in the workplace.
Q2. Are legal duties applying to the charitable and voluntary sectors sufficiently clear to support charitable and voluntary activities whilst protecting the people affected by them?
Thompsons’ has no comment.
Q3. Do you think the way the health and safety system is perceived by employers, workers and the wider public in Britain has a significant impact, e.g. on accident rates, or on the way employers act?
There is a problem with health and safety being seen as burdensome, boring and the preserve of anoraks.
When an aversion to health and safety as an issue is combined with fear of a compensation culture it is a massive turn off for employers and employees alike.
There is clear evidence that the more that is invested in health and safety by employers the safer work places get (IOSH Survey carried out by Glasgow Caledonian University in October 2007). The Health and Safety Executive research in June 2005 showed that there is a positive link between the appointment of safety representatives and the level of health and safety awareness and performance within a company. These reports should be better promoted and dealing with health and safety seen as a positive not a negative.
Far more could be done to highlight the positive news that comes from health and safety awareness rather than the only news being of prosecutions and injuries. Real evidence of improvements as a result of working management and workers cooperating is the good news that should be promoted.
As a firm we have come across many instances over the years where management, when faced with inexperience or lack of knowledge about health and safety regulations has turned to the union for assistance to understand what their responsibilities are. Well trained union representatives and safety representatives are in a very strong position to positively influence health and safety in the workplace.
Q4. How can good heath and safety management best be encouraged and recognised?
Sadly it has been our experience that management has often only been motivated to deal with health and safety after a disaster rather than before. The motivating factor has been imminent litigation and the threat of increasing insurance premiums. Inevitably when dealt with following an accident the cost of implementing proper procedures is significantly greater than if those procedures had been in place initially.
There is no reason other than employer inertia why health and safety is not a matter of boardroom concern. Too often it is relegated to a side issue rather than being properly addressed in a proactive way.
The problem with discounting insurance premiums is that the insurance market is not regulated or controlled by the government it is a free market and as such whilst the aim may be laudable there is no way that the government can enforce the approach amongst insurance companies.
There is limited evidence that lower insurance premiums for those employers who have a good health and safety record is an incentive to maintain that record. In part the lack of evidence is a result of the insurance industry having failed to adequately test the concept. Our belief is that it would have a positive impact.
A company’s health and safety record is rarely known outside the company itself and even if it is of any size and particularly if it is not unionised within the company. We would suggest that a more public declaration of health and safety statistics from a company should be a requirement.
Providing injury statistics need not be overly burdensome but an annual report of the number of injuries and the number of days off sick as a result should be made public. This might quite simply be by way of an annual standard form email to the Health and Safety Executive who would post the information on a designated website where employees and indeed those wanting to do business with the company could see how they fared on health and safety matters.
We suspect that public exposure of companies who have poor health and safety records would impact on them as a business with people choosing others who looked after their employees better and as a result would encourage employers to take the issue of health and safety seriously.
There is a role that government can play and that is as a procurer of services. It sould be a requirement in every government contract that health and safety during the job and at the end of the job is paramount and a report is prepared by the contractor to show what they intend to do about health and safety on a job and how they have complied with that on completion of the job.
Q5. Do you believe fear of compensation claims has any influence on the way in which health and safety is managed? If so, how?
Yes. Irrational and unjustified fear of a compensation claim being brought has led to absurd decisions by employers. And that fear has been stoked by the insurance industry to justify premium increases and to drive their own agenda to have a change in the way in which the courts deal with personal injury claims so as to reduce the involvement of lawyers and increase the extent to which insurers are able to handle the claims direct with members of the public themselves.
The answer is to engage with the ABI to regulate their members more effectively.
Q6. What more, if anything, do you believe the Government should do to ensure employers have access to affordable, authoritative information and advice on health and safety?
From one perspective you could say that there is a surfeit of information available for employers and there is no need for the Government to put out more. This is a classic case of less being more.
The key message that needs to get out is that health and safety is not something to be feared by employers but a simple and practical process that needs to be addressed for the good of the business.
The decision to abandon the pilot Workplace Health Connect, a confidential service designed to give free practical advice on workplace health and safety in return to work issues to smaller businesses in England and Wales was an error and should be reversed.
The key issue is really enforcement. There is a risk of information overload and people not taking the risks seriously. If they face a real prospect of the rules being enforced they are more likely to take them seriously.
The problem with too much information is that it also encourages people to think that the issue is overly complex and then to consult consultants as a defensive measure.
Thompsons would question the quality of work being carried out by some health and safety consultants employed by companies. We support the concerns that have been expressed by the Institute of Occupational Health and Safety in the past concerning the lack of regulation of safety consultants and advisors and consider there should be minimum standards.
We suspect that there is a considerable opportunity for a Q&A approach to health and safety issues. Where there are inquiries received by the HSE on a regular basis they should be flagged up on the HSE website with the answer to assist people who may have similar concerns.
The ludicrous notion that school trips should be curtailed or banned because of health and safety concerns needs to be comprehensively dismissed by the Government, something it has failed to do so far. Whenever we have the opportunity Thompsons makes the point to anyone who will listen that judges have not changed, the law has not changed and the idea that there is a different view being taken of cases than in the past is simply untrue. The negligent teacher or voluntary worker of course should be concerned that they may be at risk but the answer if for them to avoid taking the foolish step rather than cancel the event altogether. The Government should make the same or similar points at every opportunity.
Q7. How can regulators best ensure that employers minimise ill-health that is caused or made worse by work?
There is a culture issue here that pervades across the whole of the health and safety issue. There needs to be an openness about accidents and ill health.
Inevitably some industries will be more dangerous than others but there should be no sense of shame by employers if accidents happen despite the best endeavours. By publicising who has a good safety record we can encourage those who do not to learn from the practice of others. It is not the case of those with the most money avoid the accidents it is those who are more proactive and effective on health and safety avoid the accidents.
In respect of a major health and safety issue in the workplace – stress – there needs to be a move away from the ineffective counselling remedies that have been proposed. Counselling is only of use if it is properly provided and the real answer is to avoid the stress in the first place. In our experience most of the stress related claims we see are the result of poor management rather than a problem with the tasks involved in the job itself.
By encouraging early intervention, proper management training and audits of health and safety the issue of stress in the workplace could be effectively dealt with.
It may be that if there is openness about injuries and accidents across workplaces that those who have a good record could be encouraged to mentor those who do not. It could be a requirement of renewal of a insurance policy that such mentoring is sought and the advice followed.
Q8. Do you feel that regulators’ targeting methods adequately reflect the risks of work in terms of ill-health, as well as injury?
No comment.
Q9. What improvements could be made to help HSE and Local Authority inspectors target rogue employer?
By their very nature it is very hard to target rogue employers unless there is a system of regular inspection to identify them in the first place.
If it is right that the likelihood of inspection is once every 13 years it is highly unlikely that rogue employers will be identified. Rogue employers only tend to come to light after disasters and by then it is too late for the individual who has been injured.
We believe that:
- There should be an obligation on insurers to report anyone with significant health and safety problems to the HSE.
- Unions should have the right to demand an inspection by the HSE of an employer who they identify as having significant health and safety problems in the workplace.
- The HSE should be sufficiently funded to carry out the extra inspections that are necessary as a result of insurance company reports or union demands.
- There should be also an anonymous helpline for individuals who are in non-unionised workplaces to be able to report health and safety problems in their workplace. This is all the more important with the increase in migrant labour whose workplaces often see the worst health and safety abuses.