Is safety watchdog up to the task?

At the end of March 2020, around a week into the first national lockdown, unions representing HSE staff — the FDA, PCS and Prospect — wrote to the safety regulator’s senior management urging them to fulfil their duty as the independent regulator in charge of enforcing health and safety at work.

They said despite government guidance that only essential workers should be going to work, some employers were stretching the interpretation to keep as many people as they could working.

“There is significant disquiet on social media about HSE’s apparent silence on what is clearly a workplace issue,” they said. “We are concerned not only by the apparent inaction but also by the potential reputational damage this will cause to HSE as an independent regulator in the longer term.”

In early April 2020, the HSE issued a joint statement, agreed with the TUC and the CBI employers’ body, warning employers not complying with Public Health England guidance — including enabling social distancing where practical to do so — that it would “consider a range of actions”.

This ranged from providing specific advice to employers to issuing enforcement notices. The latter includes prohibition notices, issued for serious health and safety problems, which have the effect of stopping work.

And in May 2020, prime minister Boris Johnson announced the HSE would carry out workplace “spot checks” to make sure businesses were complying with the new BEIS business department “COVID-secure” back-to-work guidelines.

But, Prospect general secretary Mike Clancy told Labour Research: “For the prime minister to say the HSE would carry out spot checks in the middle of a pandemic when it is already so poorly resourced for even its core regulatory mission — there was no clearer indication of the lack of understanding in government in terms of what it had done to the HSE.”

Johnson then announced an additional £14 million funding for the HSE. But the safety enforcement body had seen a decade of cuts, with government funding falling by 46% from £231 million in 2009-10 to £123 million in 2019-2020, according to the TUC.

Clancy described the additional £14 million as a “veneer” that has “largely gone on simplistic checks by external contractors, in no way deals with the deficit, and is not a substitute for proper recruitment and deployment of properly trained regulatory inspectors”.

Lack of resources

The number of inspectors has also fallen dramatically. In 2010, according to figures obtained by the Unite union through a Freedom of Information request, frontline inspectors numbered 1,311. In September 2020, Prospect reported, there were just 390 frontline main grade inspectors across Britain.

Unsurprisingly, a November 2020 report by the Resolution Foundation think tank, Failed safe?, found the HSE had “entered the pandemic severely under-resourced”. Its budget per establishment under its inspection remit more than halved over a decade, from £224 in 2010-11 to just £100 in 2020-21. “This lack of resources, coupled with HSE’s risk-based approach to enforcement, meant that HSE were slow to respond to the pandemic,” it added.

Workplace inspections and enforcement notices

“The number of workplace inspections was well below average during lockdown (though inspections have picked up since), and just 221 COVID-related enforcement notices were issued from April to September — a number wildly out of step with the extent of employees’ worries about the virus in the workplace.”

In part this reflects that COVID is not deemed a serious enough risk to grant inspectors stronger enforcement powers” (see box below). The Observer newspaper reported earlier this year that it appeared the HSE had not prosecuted any companies for breaches of health and safety law that were COVID-related.

Its analysis found the HSE had not issued any enforcement notices to firms for COVID safety breaches since the country went into the latest lockdown, despite being contacted almost 3,000 times about workplace safety issues between 6 and 14 January 2021.

“Overall, just 0.1% of the nearly 97,000 COVID safety cases dealt with by the agency during the pandemic appear to have resulted in an improvement or prohibition safety notice,” it added.

Prospect says the HSE’s decision to categorise COVID as a “significant” rather than “serious” workplace issue unnecessarily limits the enforcement options available to inspectors, removing their ability to use prohibition notices — to bring an activity to an immediate stop.

HSE response to criticism

Following accusations by National Hazards Campaign chair Janet Newsham that the HSE has been “AWOL during the pandemic”, British Safety Council chair Lawrence Waterman, recently told Construction News that the HSE had been “invisible” during “the biggest health crisis in my lifetime”.

In response to these charges, an HSE spokesperson said the additional £14 million it had secured for 2021-22 would enable it “to continue to support the government in its national response to the global COVID-19 pandemic” on top of regular funding “to deliver its wide-ranging regulatory functions”.

He told Labour Research that it is not accurate to say that no enforcement has happened during the time period highlighted by The Observer, with inspectors continuing “to be out and about, putting employers on the spot and checking that they are complying with health and safety law”.

He said: “We introduced proactive telephone-based spot checks earlier on in the pandemic and have since implemented the same process for spot check visits to workplaces which are undertaken by Spot Check Support Officers.

“This has allowed us to significantly scale up our proactive work to check, support and advise businesses on the implementation of the Public Health Safer Workplace guidance whilst supporting local authorities, and respond rapidly to local outbreaks.” It also allowed inspectors and visiting staff to focus on more complex COVID-19 work in addition to investigating reported concerns and investigating incidents, he added.

Since the start of the pandemic, the HSE has handled 195,797 COVID-related contacts and completed 151,674 cases where it has reached an outcome. This included 56,650 site visits, with enforcement action taken in 8,575 cases: 6,823 cases where verbal advice was provided; 1,527 written correspondence cases; and 225 cases resulting in notices.

The spokesperson also pointed out that not all concerns reported are for the HSE as an enforcing authority as other organisations, including local authorities, also deal with workplace safety. And in relation to the lack of prosecutions, “court processes are lengthy and bringing prosecution is not swift in any arena”.

Government needs to change approach to enforcement

Clancy said the focus on the number of prosecutions and notices in relation to COVID outbreaks in workplaces is understandable. But, he said, “it is really essential to understand that health and safety inspectors are not individuals with a clipboard hell bent on closing down businesses. That characterisation feeds into the “Red Tape” mantra — obstructive regulators that need to be removed for businesses to flourish.”

The Resolution Foundation also called on policy makers to “overturn the current view that health and safety is a ‘brake on business’ and take a more proactive approach to enforcement in the face of the pandemic”. It added: “‘COVID-secure’ workplaces aren’t just important for workers: they’re vital if firms are going to bounce back from the pandemic with busy, fully-staffed premises, factories and offices.”

Unfortunately, there are few signs the government is listening to unions, think tanks or health and safety organisations.

Clancy said that with some exceptions, the degree of government engagement with unions, during the pandemic, is diminishing, as is the quality of engagement.

He pointed out that there was not a single reference to the HSE in the English roadmap out of lockdown.

“As a union we want to celebrate the HSE and our members,” he said. “They are key to workplace and commercial confidence in the recovery phase.

“We need strong powers to be available to inspectors, and the HSE needs resources to be a force for confidence and safety and a key to business recovery, consumer confidence and worker confidence.

“Without that, the recovery will falter. The government must recognise the HSE needs better resourcing and see it in a positive light as a contributor to economic success.”