The Work of the Health and Safety Executive Report and Proceedings of the Committee
published by the Environment, Transport and Regional Affairs Select Committee
HCP 31-I, ISBN 0 10211700 4, price £8 from the Stationery Office
The Health & Safety Commission (HSC) has issued a new enforcement policy statement outlining when and how the Health & Safety Executive (HSE) and other health and safety enforcing authorities (eg local authorities) will take action to investigate and prosecute companies for breaches of health and safety law.
The publication revises the previous enforcement statement policy issued in 1995. It comes after the House of Commons' Environment, Transport and Regional Affairs Select Committee published a report in February 2000 that was scathing about the HSE's performance. It concluded that the HSE was failing to investigate a sufficient number of workplace accidents and was not bringing enough prosecutions against companies that flouted health and safety legislation.
In response, in the summer of 2000, the Government and the HSC announced plans to increase the number of investigations by the HSE into workplace accidents. Later in the autumn of 2000 the HSC launched a public consultation on proposed changes to the enforcement policy statement.
The policy applies to all Britain's enforcing authorities, including the HSE and all local authorities in England, Scotland and Wales.
It makes clear to inspectors, employers, workers and the public, what standards they should expect when it comes to enforcing health and safety in the work place. The policy determines when enforcing authorities should take action. The enforcing authorities have a range of options at their disposal to enable them to secure compliance with the law and to ensure a proportionate response to criminal offences committed by companies. These options include writing warning letters to companies, serving improvement and prohibition notices, withdrawing approvals, varying licence conditions, the issue of formal cautions and their ultimate deterrent, prosecution.
Decisions on whether to investigate a workplace incident must take into account a number of factors including:
The severity and scale of potential or actual harm.
The seriousness of any potential breach of health and safety law.
The offending company's previous health and safety record.
The wider relevance of the incident, including the public concern caused by it.
The policy sets out when a prosecution should normally take place in the public interest. These include any one of a number of circumstances, such as:
Where a death has occurred as a result of a breach of health and safety legislation.
When the gravity of the offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offending company warrants it.
If there has been a reckless disregard of health and safety requirements by the offending company.
If there have been repeated breaches by the offending company of health and safety law which give rise to significant risk, or persistent and significant poor compliance.
When a company's standard of managing health and safety is far below what is required by health and safety law and gives rise to a significant risk.
The HSE in its 1997 guidance - Successful Health & Safety Management (often referred to as HSG65) states that accidents, ill health and incidents are seldom random events and that they generally arise from failures of control by management. It says the immediate cause may be a human or technical failure, but they usually arise from organisational failings which are the responsibility of management.
Some companies try to pass the buck by blaming health and safety failures on frontline workers who have made a mistake. However, in another guidance published by the HSE in 1999, entitled Reducing Error, Influencing Behaviour (often referred to as HSG 48), it says:
'Over the last 20 years we have learnt much more about the origins of human failure. We can now challenge the commonly held belief that incidents and accidents are the result of a 'human error' by a worker in the 'front line'. Attributing incidents to 'human error' has often been seen as a sufficient explanation in itself and something which is beyond the control of managers. This view is no longer acceptable to society as a whole. Organisations must recognise that they need to consider human factors as a distinct element which must be recognised, assessed and managed effectively in order to control risks.'
In the past there have been very few prosecutions of directors and senior managers when there have been serious health and safety breaches. But, the policy makes it clear that the conduct of management should be considered. In particular enforcing authorities should consider the management chain and the role played by individual directors and managers. It says action should be taken by them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part. The policy statement also says, where appropriate, enforcing authorities should seek to have directors disqualified under the Company Directors Disqualification Act 1986.
Bill Callaghan, Chairman of the HSC, commented on the publication of the enforcement policy statement that 'Inspectors must consider carefully the role of individual managers and directors when serious failures do occur - and ensure that appropriate action is taken against them if the evidence justifies it'.
He also said: 'The HSC relies on the co-operation of responsible bosses to safeguard the health and safety of Britain's work force and tries to give every encouragement for them to do so.'
Last year the HSC issued a guidance entitled Directors' Responsibilities for Health & Safety. The guidance sets out five action points which are:
1 The Board needs to accept formally and publicly its collective role in providing health and safety leadership in its organisation.
2 Each member of the Board needs to accept his/her individual role in providing health and safety leadership for their organisation.
3 The Board needs to ensure that all Board decisions reflect its health and safety intentions, as articulated in the organisation's health and safety policy statement
4 The Board needs to recognise its role in engaging the active participation of workers in improving health and safety.
5 The Board needs to ensure that it is kept informed of, and alert to, relevant health and safety risk management issues. The guidance recommends that one of the Board members is appointed as the 'Health & Safety Director'.
Mr Callaghan concluded with a warning for negligent employers: 'Now, more than ever, there is no excuse for those at the top to be ignorant of their responsibilities or to fail to take effective action. If you cannot manage health and safety, then you cannot manage'.
With this enforcement policy statement the health & safety watchdog has shown its teeth. We will now have to wait and see whether it actually bites.