LRD Booklets August 2013

Health and safety law 2013

Introduction

Introduction

This latest edition of the Labour Research Department’s (LRD’s) annual guide to health and safety law, Health and Safety Law 2013, sets out the law using clear and practical language, explains the changes that have taken place since the last edition, and addresses further changes and likely developments for 2013-2014. It is aimed at trade union members and reps, and will be of particular use to safety reps.

The guide is being published at a time of continued and unprecedented government hostility towards health and safety regulation. The government’s core message — that worker safety is not important — underscores numerous developments over the past year.

In January 2013 prime minister David Cameron announced that he wanted to “repatriate workers’ rights” from Europe and not, as TUC general secretary Frances O‘Grady pointed out, because he wants to improve them:

“The government has already made it easier for employers to sack people they don’t like and more difficult for workers to get justice before the courts. Now it is trying to abolish wage protection for farm workers, and stop people injured at work getting their rightful compensation. But there’s one set of workers’ rights David Cameron can’t touch. Those are the rights provided for by social Europe — paid holidays, health and safety, equal treatment for part-time workers and women, protection when a business is sold off, and a voice at work.”

The Enterprise and Regulatory Reform Act 2013 will amend section 47 of the Health and Safety at Work etc Act 1974 (HSWA) so that workers will only be able to claim compensation for a workplace injury or disease if they can demonstrate employer negligence, even if it is accepted that employer had broken criminal safety.

Also in January 2013, Cameron told a group of business leaders in the North West that “a lot of kids aren’t getting the sort of work experience that you used to get, because of all the concerns about health and safety”, suggesting that health and safety laws get in the way of job creation for young people. In the same month 16-year-old Cameron Minshull was killed at work just weeks after beginning his apprenticeship at an engineering firm in Bury, Greater Manchester. He suffered serious head injuries when he was dragged into an industrial metal lathe.

Health and safety law and enforcement has continued to be weakened as a result of recommendations contained in two government-commissioned reviews of health and safety law: the 2010 Young Review, Common sense, Common safety, and the 2011 Löfstedt Review: Reclaiming health and safety for all, as well as changes that have gone beyond their recommendations.

These include the scrapping of the Notification of Tower Cranes Regulations 2010 and the Construction (Head Protection) Regulations 1989; the removal of “strict liability” (see above); the downgrading of the Approved Code of Practice to the Management of Health and Safety at Work Regulations 1999; and proposals to amend health and safety law in order to exempt some self-employed workers.

This deregulatory agenda is both ideological and cost driven. In October 2010, the government announced a 35% cut to the HSE’s budget, spread over four years. It is also dangerous. The HSE admits that cuts in enforcement activity will result in more work-related deaths, injury and illness, and accepts that “the expected lower level of enforcement [will] mean a consequent decrease in health and safety standards throughout Great Britain, with ensuing costs to society.”

Proactive health and safety inspections no longer take place in many industries. A Stirling University study recently reported that there are now at least 37 designated “sectors without inspectors” including agriculture, quarries, plastics, electricity generation and supply and the health service and that the HSE now only investigates five per cent of “major injuries” reported to it. Since the government’s strategy to reduce proactive inspection was introduced, more than half (53%) of all fatalities in HSE-enforced workplaces have occurred in sectors excluded from the HSE’s unannounced inspection programme.

A new National Code explicitly outlaws proactive inspections outside “high risk areas” by local authority regulators and will exempt hundreds of thousands of businesses from “burdensome” health and safety inspections. Businesses will now only be inspected if they are operating in high-risk areas or if they have a poor safety record. In addition, a proposed “growth duty” for regulators would require the HSE to take into account the impact of their activities on the economic prospects of firms they regulate, and a revised Regulators’ Code, expected in Spring 2014, will require “methods of enforcement that are tailored to meet the needs of the business.”

In the current climate of job insecurity, fear of dismissal and attacks on facility time, effective solidarity and collective action to champion safe working practices are more important than ever, and reps will need to work hard to continue emphasising health and safety as a key organising issue in the interests of all workers, as well as continuing to campaign at local and national level.

Since the coalition government came to office in May 2010, there have been many campaigns and protests against the undermining of workplace health and safety, in particular, the Hazards campaigns: “We didn’t vote to die at work” and “Stop it: You’re killing us!”

The union safety effect is recognised by the HSE, whose own research evidence shows that “organisations with properly involved, unionised safety representatives achieve better health and safety performance than those without such representation”. The evidence in support of the union safety effect was updated and consolidated into a 2011 TUC report, How unions make a difference to health and safety: the union effect, which can be downloaded from the TUC website at: www.tuc.org.uk/tucfiles/45/union_effect_2011.pdf

The Löfstedt review, Reclaiming health and safety for all (see Chapter 12), also supported the role of safety reps in the workplace. It agreed that “boosting the responsibility and involvement of employees has the potential to bring about significant improvements in health and safety in the workplace”, and endorsed evidence that workplaces with safety reps and joint safety committees record up to 50% fewer injuries. The review agreed that: “Evidence clearly shows that when employees are actively engaged in health and safety, workplaces have lower accident rates”.

Health and safety law 2013 aims to provide trade union reps and safety reps, with a comprehensive guide to the law on health and safety at work. The booklet examines the Health and Safety at Work etc Act 1974 and the Regulations made under the Act that deal with specific areas of health and safety. It looks at:

• the basic structure of health and safety law (Chapter 1);

• health and safety enforcement (Chapter 2);

• the management of health and safety (Chapter 3);

• safety representatives and safety committees (Chapter 4);

• the workplace and the working environment (Chapter 5);

• hazardous substances (Chapter 6);

• physical hazards, such as manual handling and repetitive tasks (Chapter 7);

• fire, noise, vibration and electricity (Chapter 8);

• hours of work (Chapter 9);

• the reporting of accidents and ill health (Chapter 10);

• stress, bullying and violence (Chapter 11); and

• the two recent reviews of health and safety, the Löfstedt review and the Young review (Chapter 12).

The Act and the Regulations referred to in this booklet can all be found on the Legislation UK website at: www.legislation.gov.uk

Approved Codes of Practice (known as ACOPs) and Guidance on the Regulations are published by the HSE and can be downloaded free of charge from its website at: www.hse.org.uk. This booklet also provides examples from legal claims, known as “case law”. In each instance the case reference is given, consisting of the name of the individual or body making the application to the Court and the individual or body against whom it is being made.

For example, Allison v London Underground Ltd [2008] IRLR 440, tells you that the applicant was called Allison, the case was brought against London Underground Ltd and that the judgment was reported in the law reports for 2008. The letters IRLR stand for the publication it was reported in, Industrial Relations Law Reports, and the number 440 that the case was reported on page 440. Other relevant court cases and employment tribunal decisions not reported in IRLR are referenced wherever possible, either as they appeared in the press, or by the Court or tribunal reference number.

The Labour Research Department provides an enquiry service for affiliates and deals with many health and safety enquiries from union members and reps. See www.lrdpublications.org.uk/affiliations.php for details of how to affiliate.

The monthly publications Safety Rep, Labour Research and Workplace Report also include many health and safety topics as do recent LRD booklets including Preventing injury at work and Safety, health and equality. For further information and ordering details see the LRD website at: www.lrdpublications.org.uk

The TUC weekly online Risks updates provide another very useful tool. Sources for more information are highlighted throughout the booklet, including links to relevant websites, and the final chaper Further information , provides details of how and where to get the publications mentioned.