2. The health and safety inspection and enforcement regime

Changes and developments since last year

• In March 2011, the DWP announced a cut of one-third to the number of proactive (unannounced) workplace inspections by the HSE and local authorities and a targeting of remaining inspections at sectors categorised by the DWP as “high risk”.

• In May 2011, the HSE and the Local Government Group jointly published a revised inspection strategy entitled Joint guidance for reduced proactive inspections to implement the one-third cut in proactive inspections.

• In November 2011, the HSE revised its guidance on risk rating in response to the recommendations in the Löfstedt report.

• In January 2012, a new Independent Regulatory Challenge Panel was set up. This enables employers to complain about advice they receive from health and safety inspectors that employers think is incorrect or goes “beyond what is required to control the risk adequately”. The outcome of any complaint is to be published on the HSE website.

• In May 2012, the HSE set up a Myth-busters Challenge Panel to scrutinise advice or decisions of third parties such as employers, insurers, councils or health and safety consultants on the basis of health and safety concerns, to test whether the concern was appropriate, or the response proportionate.

More change to enforcement policy on the horizon

• The HSE has delayed the introduction of a planned Fee for Intervention scheme, which was supposed to start from April 2012. The new scheme is now expected to launch in around October 2012. Under the new regime, employers who break health and safety laws will be required to pay HSE’s enforcement costs.

• In May 2012, the government published its draft Enterprise and Regulatory Reform Bill which includes proposals aimed at reducing the “burden” of regulatory inspections on businesses.

• The HSE is to start consulting on a new national enforcement code in September 2012, with a view to launching it in April 2013.

• In May 2012, the government announced a plan to radically reduce the remit of the Gangmasters’ Licensing Authority.

Enforcement agencies and regulators

The HSE and local authority environmental health departments are responsible for enforcing most health and safety legislation in workplaces. The fire authority generally enforces fire safety law, and the police are responsible for investigating road traffic accidents. The appropriate enforcement authority depends on the type of workplace, as set out in the Health and Safety (Enforcing Authority) Regulations 1998.

Local authority environmental health officers (EHOs) generally deal with offices, shops and warehouses, in addition to leisure centres and some places of entertainment.

Local authorities currently regulate health and safety in around half of business premises in the United Kingdom. The HSE, which is divided into several inspectorates, deals with factories, agriculture, building sites, quarries, mines, schools and colleges, fairgrounds, gas electricity and water systems, hospitals and nursing homes, central and local government premises and nuclear installations.

Other enforcement agencies are responsible for particular areas of health and safety. For example, the police will be involved in investigations into work-related deaths where there is an indication of manslaughter (or another serious general criminal offence).

The Office of Rail Regulation (ORR) deals with railway safety, and local fire and rescue authorities enforce fire safety legislation in most workplaces. The Maritime and Coastguard Agency enforces marine safety, the Civil Aviation Authority (CAA) is responsible for aviation safety regulation, the Driving Standards Agency deals with driver training and testing and the Vehicle and Operator Services Agency (VOSA) deals with vehicle testing.

An Office for Nuclear Regulation was set up as a non-statutory body from 1 April 2011 to regulate the nuclear sector, pending legislation to create a separate statutory body. It has taken over responsibility from the Nuclear Directorate. It is also responsible for regulating the transport of radioactive material.

The Gangmasters Licensing Authority (GLA) regulates employers who supply labour to the fresh produce supply chain including agriculture, horticulture, fish processing, gathering shellfish, dairy farming and packaging or processing food and drink products, via a licensing scheme.

In May 2012, the government announced its intention to remove from the GLA’s responsibility activities and groups of workers that the government regards as “low risk”, including apprenticeships, forestry, cleaning contractors and voluntary workers. In future, the GLA is to focus on “serious criminal elements in the supply of labour to the food and food processing sector” while “reducing the burden on compliant labour providers and users”.

Workplace inspections

The threat of an unannounced visit from an external regulator is one of the main ways of encouraging employers to meet the basic requirements of health and safety legislation before an accident happens. Unions and safety campaigners have long been concerned about the decline in the number of workplace safety inspections carried out by external regulators.

Evidence from the TUC’s biennial safety rep survey for 2010 shows that almost half (49%) of workplaces in the UK have never been visited by a health and safety inspector at all, even though 61% of reps believe the possibility of a visit from an inspector has encouraged their employer to make safety improvements. Nearly one in 10 reps questioned said the last inspection happened more than three years previously. Only a quarter (27%) said their workplace had been visited in the last 12 months.

HSE inspection blitzes

When the HSE embarks on an inspection blitz, it invariably uncovers worryingly high levels of non-compliance. For example, in its annual inspection blitz of construction sites in February 2012, the HSE visited 3,237 sites across Britain and one in five were below basic health and safety standards, leading to 870 enforcement notices, including 603 cases of work having to stop immediately. Nearly half the enforcement notices related to falls from height.

In fact, when Professor Löfstedt accompanied HSE inspectors for a series of live inspections for the purposes of his review, the construction site he visited was so unsafe that it had to be shut down immediately.

Similarly high levels of non-compliance have been found during inspection blitzes on other sectors, such as waste management and recycling.

For example, an enforcement drive against motor vehicle repair premises in Kent in December 2010 resulted in half (49%) of employers visited being issued with enforcement notices after inspectors found criminal safety breaches, including unsafe electrics and vehicle lifts, and dangerous welding equipment.

Enforcement strategy

Cuts in proactive inspections combined with targeted enforcement

In March 2011, the Department of Work and Pensions (DWP) published a strategy paper Good health and safety: Good for everyone, aimed at reducing the “burdens on business” of health and safety regulation and changing the “culture of red tape”. The report was written without union consultation and the main change it introduced was a one-third cut in proactive (unannounced) inspections (representing at least 11,000 fewer inspections each year). The change came into effect almost immediately.

Proactive inspections are unannounced visits by an inspector who has not already been alerted to a possible problem (for example, through a tip off by a member of the public or a worker). The cut in inspections was partly in response to a 35% cut in the HSE’s budget announced in October 2010. A similar cut was made to local authority inspections, representing around 65,000 fewer local authority inspections each year.

Future enforcement resources are to be targeted at the workplaces identified in the report as being the most “hazardous”. However, unions and safety campaigners have expressed concern that particular sectors have been identified in the report as “low” risk (and so, in no need of proactive inspection) without any obvious reason.

According to the DWP report, “major hazard” industries will continue to be regulated at a high level and will continue to be subject to unannounced inspection, although a “light-touch” approach is to be adopted for “responsible businesses” that “do the right thing”. Examples given of “major hazard” industries are construction, waste, recycling and certain areas of high risk manufacturing, for example molten and base metal manufacture.

Proactive inspections are no longer likely in the following sectors: agriculture, quarries, and health and social care. The reason given by the DWP for withdrawing unannounced inspections from these sectors is because unannounced safety inspections in these sectors are “unlikely to be effective” at maintaining health and safety standards.

Proactive inspections have been abolished altogether in the following sectors, described in the report as “low risk”:

Textiles, clothing, footwear, light engineering, electrical engineering, the entire transport sector (including air, road, haulage and docks), local authority-administered education, electricity generation and postal and courier services.

New joint guidance for reduced inspections

Following the report, in May 2011 the HSE and the Local Government Group published its Joint guidance for reduced proactive inspections, available to download at: www.hse.gov.uk/lau/pdfs/reduced-proactive-inspections.pdf.

Retail union USDAW has described this strategy as “seriously flawed”, and has warned that the approach, based on “risk ratings”, exempts many shops, offices and other local authority enforced businesses from inspection altogether. The narrow focus of inspections also means that work-related health issues such as stress and musculoskeletal injuries will be ignored. Shops, offices and classrooms had already been classified as “low risk” in an earlier government report by Lord Young, Common sense, common safety, published in October 2010.

HSE revised guidance to risk rating

To clarify this “targeted approach” to enforcement, in November 2011 the HSE revised its guidance on the four category “risk rating” system (A, B1, B2 and C, where A= high risk and C = low risk), used by local authorities to target enforcement resources. This new protocol removes proactive inspections from all workplaces except those falling into category A. The revised guidance can be found at: www.hse.gov.uk/lau/lacs/67-2.htm.

Paying for enforcement: Fee for intervention

Under current arrangements, only high hazard industries (such as nuclear and off-shore facilities) are required to cover the regulator’s costs of health and safety enforcement. In all other cases, these costs are publicly funded. This is due to change, with the planned introduction by the HSE late in 2012 of a “fee for intervention” scheme (also known as “fee-for-fault”). Under this new scheme, the employer will be ordered to pay the regulator’s enforcement costs whenever the employer breaches health and safety law.

Fee-for-fault is seen as one way of raising funds to supplement the HSE’s budget. The HSE will recoup all its costs from duty holders whenever it intervenes formally and in writing to address a “contravention” of health and safety law. In other words, it will recover its costs whenever it issues an enforcement letter or an enforcement notice. There will be no fee-for-fault for verbal advice. There is no need to introduce fee-for-fault mechanisms for existing legal enforcement proceedings because HSE is already able to recover its prosecution costs.

The new scheme was scheduled to start in April 2012. However, administrative difficulties have delayed implementation until October 2012.

The scheme is to apply in all sectors regulated by the HSE except high hazard industries that are already covered by a separate scheme. There are no plans to extend fee for intervention to businesses that are regulated by local authorities.

Safety campaigners have expressed concerns about fee for intervention because there is a risk, especially when introduced at the same time as cutting proactive inspections, that an employer may be incentivised to conceal accidents and near misses in order to avoid a fee. It may also undermine the existing generally good relationship between businesses and inspectors.

Penalties — notices and fines

The Health and Safety at Work Act (HSWA) provides for three main systems of enforcement. These are:

• improvement notices;

• prohibition notices; and

• fines or imprisonment.

When an improvement notice is served, the employer must take action to put things right within a specified time. If the employer fails to comply, a prohibition notice may be issued, stopping the operation that is causing the hazard.

Inspectors have the power to issue an immediate prohibition notice, stopping an operation if there is a risk of immediate danger. A deferred prohibition notice may also be issued. Appeals against these notices must be made to an employment tribunal and can lead to a stay (delay) of execution of an improvement notice. There can be no delay in implementing a prohibition notice if the inspector believes that the risk of serious personal injury is imminent.

Judges can impose fines which consume or exceed company profits, even in cases where an employer has not been found to have deliberately cut corners to make a profit (R v FJ Chalcroft Construction Ltd [2008] EWCA Crim 770).

Fines are governed by the Health and Safety Offences Act 2008. There is a maximum fine of £20,000 for nearly all summary offences that are dealt with in a Magistrates Court, with unlimited fines in higher Courts. Nearly all offences can be punished by imprisonment — up to 12 months in Magistrates Courts and two years in the Crown Court. Unions have long called for higher penalties for health and safety offences.

In 2010-11, convicted organisations received fines totalling £18.6 million. This gives average penalties on conviction of £35,938 per prosecuted breach, up £11,000 on the preceding year’s figures. However, this total includes a number of organisations who received exceptional fines i.e. fines exceeding £100,000.

HSE Enforcement Policy Statement

The HSE Enforcement Policy Statement applies to all Britain’s enforcing authorities. It sets out to inspectors, employers, workers and the public the expected standards for the enforcement of health and safety in the workplace. The policy states that a prosecution should normally take place if one or more circumstances apply:

• a workplace death is caused by a breach of the law;

• there has been reckless disregard of health and safety requirements; or

• the offender’s standard of health and safety management is far below what is required.

Investigating work-related deaths

There is an HSE protocol for liaison on work-related deaths between the Association of Chief Police Officers, the Crown Prosecution Service, the Local Government Association and the British Transport Police. Under this protocol, police must be involved in a manslaughter investigation from the time they arrive at the scene of death and only stop if it becomes apparent during the investigation that there is insufficient evidence that manslaughter has been committed.

Corporate manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 created a new offence of “corporate manslaughter”. The legislation aimed to make it easier to prosecute companies and other large organisations when gross failures in the management of health and safety have led to a death. The Act is the result of persistent campaigning by safety campaigners and unions.

The law removed a key obstacle in previous prosecutions, where a company could only be convicted of manslaughter if a “directing mind” (such as a director) at the top of the company was also personally liable.

The Act also lifted Crown immunity to prosecution for manslaughter (see below). It applies to companies and other corporate bodies in the public and private sector, government departments, police forces and certain unincorporated bodies, such as partnerships, where these are employers. However, it does not apply to the armed forces or to the operations of companies registered in the UK if a fatality occurs abroad.

The Act allows a jury to convict an organisation for both the offence of corporate manslaughter and for health and safety offences. This allows company directors to be prosecuted for a health and safety offence at the same time that the company is prosecuted for corporate manslaughter, although in practice, few directors have been brought to trial for health and safety breaches.

Potential penalties include an unlimited fine, a remedial order or a publicity order. Sentencing guidance was published by the Sentencing Guidelines Council in February 2010. This explains that fines for organisations found guilty of corporate manslaughter should be measured in millions of pounds and should not generally be below £500,000. However, the first prosecution for corporate manslaughter, against Cotswold Geotechnical Services in February 2011, resulted in a fine of only £385,000, over the death of a young geologist, Alexander Wright:

However, in July 2012 Lion Steel Equipment, a Cheshire manufacturing firm, was fined almost half a million pounds for corporate manslaughter following the death of a worker. It is the third company in the UK to be found guilty of such an offence when it pleaded guilty to the charge last week. The firm has now been issued with a fine of £480,000 and ordered to pay prosecution costs of £84,000 by Manchester Crown Court.

The case relates to the death of worker Steven Berry, who died after falling through a fragile roof panel at a site in Hyde, Cheshire in May 2008. Individual charges of gross negligence manslaughter against the firm’s three directors were dropped in return for the company pleading guilty to corporate manslaughter.

Crown immunity

Crown bodies are organisations that act on behalf of the Queen, for example, prisons, government departments, the police and the Royal Mint. Under the HSWA, Crown bodies must comply with health and safety law. However, the provisions of the Act that allow inspectors to prosecute employers for breaches of the law do not apply to Crown bodies. This is known as Crown immunity.

The Corporate Manslaughter and Corporate Homicide Act 2007 largely removed Crown immunity for corporate manslaughter. However, Crown immunity remains for health and safety offences. Unions whose members work for Crown bodies want the government to abolish Crown immunity completely.