12. The Löfstedt review of health and safety

The Löfstedt review, Reclaiming health and safety for all, was published in November 2011. The review was commissioned by the Department for Work and Pensions (DWP) and chaired by Professor Ragnar Löfstedt, director of the Kings Centre for Risk Management at King’s College London. The review’s remit was very narrow: to consider “opportunities for reducing the burden of health and safety legislation on UK business while maintaining progress to date in improving health and safety outcomes”. The review was not asked to look at opportunities to improve worker health and safety.

The review concluded that “in general, there is no case for radically altering current health and safety legislation” and that the law as it stands is “broadly fit for purpose”. It also concluded that roughly a 35% reduction in volume of health and safety regulation could be achieved through a process of simplification and consolidation. The TUC welcomed the broad conclusion in support of the existing legal framework for health and safety law and supports the review’s commitment to consolidating and simplifying health and safety regulation and guidance, as long as this does not reduce or undermine worker protection.

Despite this guarded welcome of the review’s principal conclusions, unions have significant concerns about some of its more detailed recommendations. Many also fear that the review will be used to justify further attacks on the safety inspection and enforcement regime.

Key concerns voiced by unions and safety campaigners include the following:

• Exempting self employed workers from health and safety protection: The Löfstedt review recommends exempting from the protection of health and safety law all “self-employed” workers whose work activities pose “no potential risk of harm to others”, suggesting that this change will “benefit” approximately one million people. The TUC and unions strongly oppose this proposal. They point out that it sends a dangerous message, down-grading the importance of health and safety for these workers. Löfstedt seeks to justify the proposal by pointing out that enforcement action against a self-employed person is very unlikely, but the TUC emphasises that a regulator’s role is about far more than enforcement, and that the regulator should take responsibility for these workers, who should be able to rely on the HSE for training, education and guidance just as a directly employed person does.

Safety campaigners point to the economic vulnerability of this large group of mostly non-unionised workers, the problems likely to result from the lack of any definition of “self-employment” and the potential for abuse by bad employers. Bogus self-employment is already a serious problem in many sectors, such as construction.

Self-employed home-workers are at particular risk. There is no reliable statistical evidence as to how many UK workers work from home, or what they are doing. In practice, many self-employed home workers have limited control over their work and the job demands imposed on them. In particular, many are at risk of musculoskeletal conditions such as RSI or back pain.

• Dangerous lack of clarity when talking about risk: Löfstedt follows earlier health and safety reviews, such as the report produced by Lord Young in October 2010, Common sense, common safety, in drawing a distinction between so-called high risk and low risk workplaces without explaining what is meant by “low risk” and “high risk”. This failure of clarity is particularly dangerous at a time when the government is pursuing a vigorously deregulatory policy, cutting inspections and undermining enforcement (see Chapter 2: Enforcement).

• Failure to address occupational health issues: The Löfstedt review acknowledges the extent of occupational health concerns in UK workplaces, but partly due to its limited remit, the review ignores these concerns when making its recommendations. As the TUC points out, the government’s claim that Britain enjoys high standards of health and safety relies on ignoring Britain’s poor occupational health standards. When occupational ill-health and non-fatal injury statistics are included in a measure of workplace health and safety, the UK slips to just 20th of the 30 OECD countries listed on the Maplecroft Global Health and Safety Risk Index 2009 (see Chapter 10: Occupational Health). Unions reject the premise of the Löfstedt review that organisations like schools and offices, with high levels of occupational illness and injury, such as musculoskeletal disorders and stress are “low risk” workplaces. The TUC describes this as the “myth of low risk”.

• Failure to address the decline in enforcement and the lack of resources allocated to the HSE: Critics point out that the Löfstedt review ignores the decline in enforcement activity in the UK and fails to face up to the risks attached to the government’s drastic cut in inspection levels and staffing and other resources available to the regulator (see Chapter 2: Enforcement).

• Removing “strict liability” on employers: Löfstedt recommends cutting back on the extent to which employers can be found strictly liable for incidents that result in injury to workers. Where an offence attracts strict liability, this means that an employer must pay compensation to an injured worker regardless of whether the employer’s conduct was blameworthy. Such offences are already rare. Unions strongly oppose the suggested watering down of existing strict liability offences.

• Recommendations to repeal or review specific sets of regulations: As well as general proposals, Löfstedt has made a number of specific recommendations in relation to particular sets of regulations. These recommendations, and union responses, have been included in the relevant chapter of this booklet, alongside a summary of the regulation under review.

Next steps

Government response to the Löfstedt review

The government responded to the conclusions of the Löfstedt review almost immediately, publishing its formal response in November 2011. It promised to implement all the recommendations and announced a plan to cut the number of health and safety regulations by more than 50%, through “sector specific consolidation” (up from the 35% originally proposed by Löfstedt. In practice, the government has limited room to manoeuvre, since most health and safety regulation is based on EU Directive.

Review of all ACOPs

The Löfstedt review recommended that the HSE review all 52 of its ACOPs. The HSE already keeps all ACOPs and guidance under continuous review, in collaboration with unions and industry. However, the government has now announced that the HSE must complete the initial phase of the review proposed by Professor Löfstedt by June 2012. The HSE has announced that it intends to consult on proposals for reviewing and, where appropriate, revising ACOPs in the second half of 2012, with a view to any amended ACOPs being published by the end of 2013.

Further review by Professor Löfstedt

The DWP has asked Professor Löfstedt to produce a follow-up report, to be published in around January 2013.