With Workers? Memorial Day in mind, partner Marcus Weatherby ? in?a considered piece for Employment Law magazine?- looks critically at the Government?s current misguided attack on ?excessive health and safety provision?.
?Help, master, help! Here?s a fish hangs in the net,?like a poor man?s right in the law.??(Pericles, 2.1.153), Fisherman
In Shakespeare?s time the working man was unlikely to ever have access to the machinery of the law, however wronged he might have been. All of us like to think that those days have gone, and that one of the basic pillars of our legal system is that the law is accessible to all, not just those who have the right connections or can afford it.
Workers? Memorial Day on 28th April was an opportunity to highlight the preventable nature of most workplace accidents and ill health, and to promote safety campaigns and union organisation in the fight for improvements in workplace safety. Workers? Memorial Day was started by the Canadian Union of Public Employees (CUPE) in 1984, but has become accepted as the focal point for remembrance on the calendar internationally. To mark it in the UK, a series of demonstrations were held throughout the country.
A total of 171 people were killed at work in Great Britain last year, compared to 147 deaths during 2009/10. More than 24,700 workers also suffered a major injury. In the year 2010/2011, statistics from HSE show around 26.4 million working days were lost in total ? 22.1 million due to work-related illness and 4.4 million due to workplace injuries. (http://www.hse.gov.uk/statistics/dayslost.htm.)
This year?s memorial day came at a time of great change. The coalition government is changing the legislative framework protecting workers. The funding and working practices of the watchdog of health and safety. The way that workplace injuries are reported. And even the system of compensation that injured workers use to enforce their rights against negligent employers .
The Government believes that there is an excessive health and safety culture in the UK, which is an albatross around the neck of British businesses, and which strangles profit and innovation.
To investigate this, the Government commissioned a specialist in risk management ? a Professor Lofstedt ? to report on putting ?the common sense back into health and safety?. His conclusions largely supported the status quo, his general observation on health and safety being that ?the problem lies less with the regulations themselves, and more with the way they are interpreted and applied.?
Since preparing the report, Professor Lofstedt has expressed concern about the extent to which his report is being ?misused? for political purposes. He has emphasised that it did not call for significant changes to regulatory policy, or recognise the ?compensation culture? that government ministers regularly condemn.
Notwithstanding this, the report has been used as an endorsement of the government programme of reforms aimed at ?reclaiming the reputation of health and safety.?
The Government proposes the abolition of large numbers of health and safety regulations. Its intention is that health and safety regulations will be reduced by a third ? rising to over a half ? over the next three years. The current consultation on this reduction ends on the 4/7/2012.
The watchdog of health and safety, the HSE, has also been ?restructured?. The HSE is facing reductions in its government funding by 35% for the period to 2015. Since 2012 the HSE now runs a telephone service for reporting fatal and major injuries only ? with all other reports having to be done online. Which, as many of those workers affected by accidents were making reports in writing or by phone, will mean fewer accident reports are made. Inspections are to be focused on those industries deemed to be ?key major hazard industries? aimed at reducing the number of proactive inspections by 11,000 a year.
Changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR), brought on 6 April 2012, mean that the over-three-day injury reporting requirement has changed. The trigger point has increased from over three days? to over seven days? incapacitation (not counting the day on which the accident happened). We should therefore expect a reduction in the number of accidents reported. The HSE estimates there will, as a result, be 30,000 fewer reports a year.
At such a time it is relevant to ask:
1.)? Does current legislation safeguard people at work ?
Yes. The EU statistical authority, Eurostat, reveals that the fatal injury rate for Great Britain is consistently one of the lowest in Europe, and has been the lowest amongst the five largest EU countries for a six-year period.
The Lofstedt report itself states that health and safety regulations are broadly accepted to have been an important contributory factor in safer workplaces with the evidence showing that legislation is the primary driver for organisations to initiate changes to improve management of health and safety.
2.)? Is it too expensive ?
Unsurprisingly, it seems that it is accidents and ill health that cost businesses, and not a preoccupation with health and safety. The Institution of Occupational Safety and Health says work-related accidents and ill health cost businesses nearly ?8 billion a year, with absenteeism, low productivity and legal bills among the ?financial hits?.
There is no objective evidence of the financial effect of red tape, although there are estimates. The British Chamber of Commerce argues that the current raft of health and safety regulations ?distracts businesses from driving economic growth and creating employment.? However, the idea that business battles against a tide of risk assessment forms every year is not one that the evidence seems to support. The vast majority of employers are more than capable of following the easy-to-understand advice available from the Health and Safety Executive on how to do them. Over time, the assessments have become well established and familiar. It is worth looking at what the HSE states employers are broadly required to do [see HSE ?5 steps to risk assessment 6/11?]:
- Ascertain the dangers.
- Determine who can be harmed at work and how this would happen.
- Evaluate what can be done to counter it.
- Record the precautions as part of the policy and implement.
- Carry out a review.
Onerous?
3.)? If safeguards go wrong, how will the state support them?
Currently, where people have a serious accident at work, there is at least a safety net provided by the welfare benefits system to soften the impact of the financial changes caused. However, major changes to welfare entitlement in the now-approved Welfare Reform Act will affect the benefit entitlement of workers should injury prevent them from continuing in employment. People who have to take prolonged time off work will be negatively affected by the plans to replace Disability Living Allowance with Personal Independence Payment. By changes to Employment and Support Allowance. And will get less help from the Universal Credit during the first six months of their illness than they would get at present.
4.)? If employers break the law and workers are injured can they seek redress and how?
Currently there is a system of compensation which is based on the principle that the unsuccessful party will be ordered to pay the costs of the successful party. If a claim is proven, the wrong-doer pays the legal costs of their negligence. If it is not, then the claimant pays the employer?s costs of defending the claim. In other words, only if a worker was injured because of the negligence of their employer does the employer have to pay the legal costs and compensation of a civil action.
Within the current system, protection is in place for employers to prevent any excessive costs of litigation. Employers can, for example, prevent escalating costs by making a reasonable offer to the injured party. And, at the end of a case, can get the costs assessed by a judge, who will not allow the claimant to recover costs which have been unreasonably incurred, or are unreasonable in amount.
However under the LASPO bill changing this (now awaiting royal assent) the Government has undermined this principle by shifting the balance of legal payments on to claimants. So that they will have to surrender up to 25 per cent of their damages to cover costs, even when their former employer is found liable for their injury.
Worryingly for employers, under the bill there will seemingly be no way of recovering their costs of defending even the unsuccessful cases, unless they can show the claimant is either fraudulent or a millionaire. In which case there will be little to discourage litigants in person from ?chancing their arm? with a claim.
5.) If employers routinely break the law is there any censure or penalty?
With the cuts being made to the HSE, pro-active assessments of workplaces is going to be less likely. So bad employers will seemingly have less to fear from criminal prosecutions. The reduction in the number of accidents reported will no doubt suggest that an improvement in health and safety has occurred. The reality will be that health and safety will have been relegated below profit.
Government approval of the idea that that health and safety assessment has been getting in the way of business is the wrong message to be sending out a time when businesses are cutting back to deal with the financial effects of the recession. A recent survey of 600 heath and safety professionals found that the economic climate has already taken its toll on the safety sector. With 41% seeing their budget cut this year, and nearly half (45%) claiming that their company ?did not see health and safety as business critical? during a recession.
The fact is that if health and safety for employees suffers, then so too do the profits of healthy businesses. Health and safety is neglected at the peril of all.
There are two million people in the UK who have an illness or injury caused by their work ? the vast majority of which could have been prevented had their employer had taken the correct safety precautions. Never before has the slogan for Workers Memorial Day ?Remember the dead ? fight for the living? been more appropriate.
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