12. THE YOUNG AND LÖFSTEDT REVIEWS OF HEALTH AND SAFETY

The government has used two reviews to justify its attacks on health and safety legislation and the safety inspection and enforcement regime. The first, Lord Young’s 2010 Common sense: Common safety, was originally commissioned by David Cameron when he was leader of the opposition and then became a government review.

The report set out 36 recommendations, including the following:

• restricting advertising for ‘no win, no fee’ compensation claims and changing the way personal injury claims are handled. This includes extending the road traffic accident (RTA) personal injury scheme to include other personal injury claims through a three-stage procedure for lower value claims, with fixed costs for each stage. It also proposes examining the option of capping RTA personal injury claims to £25,000; procedure for ‘low-hazard’ workplaces such as offices, classrooms and shops; exempting employers from carrying out risk assessments for home workers in ‘low-hazard environments’; and exempting the self-employed in ‘low-hazard businesses’ from risk assessments;

• accrediting health and safety consultants and introducing a directory of accredited consultants;

• simplifying the process for taking children on school trips; introducing a single consent form to cover all activities a child may undertake at school; simplifying risk assessments for classrooms; shifting to a system of risk-benefit assessment; and reviewing the Health and Safety at Work etc Act 1974 to separate out play and leisure from workplace settings;

• consolidating all current health and safety regulations into a single set of regulations;

• reviewing the operation of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 1995 and extending the period off normal work before an injury or accident should be reported from over three to seven days;

• abolishing the Adventure Activities Licensing Authority and replacing licensing with a code of practice;

• stopping insurance companies from requiring businesses operating in “low-hazard” environments to employ health and safety consultants to carry out full health and safety risk assessments;

• requiring officials who ban events on health and safety grounds to put their reasons in writing and for those affected to have a route for redress;

• enhancing the role of the HSE in large multi-site retail businesses;

• combining local authority food safety and health and safety inspections; and

• ensuring that police officers and firefighters are not at risk of investigation or prosecution “as a result of committing a heroic act.”

The government reported that it had implemented 23 of the recommendations by February 2013 and the changes are set out throughout this booklet.

A second review, 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 Löfstedt review: Reclaiming health and safety for all, was published in November 2011.

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 supported the review’s commitment to consolidating and simplifying health and safety regulation and guidance, as long as this did 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 and that it is being 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 recommended 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 sought 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 homeworkers 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;

• an HSE consultation containing proposals to exempt from health and safety law those self-employed whose work activities pose no potential risk of harm ended in October 2012 and is examined in more detail in Chapter 1 together with proposals contained in the government’s Draft Deregulation Bill;

• dangerous lack of clarity when talking about risk: Löfstedt follows earlier health and safety reviews, such as 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 vigorous 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, 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 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 recommended 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 were already rare and unions strongly opposed the watering down of existing strict liability offences. However, the Enterprise and Regulatory Reform Act 2013 will repeal the law which made employers liable if they breach health and safety regulations and mean that the burden of proof will fall on the injured worker or the family of someone killed, rather than the employer. The TUC has set out that the change removes the right to claim compensation for injuries caused by a criminal breach of workplace health and safety regulations. Compensation will be restricted to cases where employer negligence is established (see Chapter 1); and

• recommendations to repeal or review specific sets of regulations: As well as general proposals, Löfstedt 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.