The Löfstedt report that was commissioned in March has now been published and contains some interesting recommendations, with a heavy focus on easing the burden for employers, but what about the employees?
The government commissioned Löfstedt report, which set out to review health and safety legislation, has been published to a generally favourable reception. The aim of the review was to examine how the burden of health and safety regulation on businesses could be reduced but not impede the progress that has been made in health and safety outcomes.
The report concludes that the current legislation does not require any radical changes, and while the cost of compliance can be high for employers the current regulations play a significantly beneficial role in the protection of the workforce and the public. The report asserts that the problem does not lie with the legislation but the way in which some businesses apply it.
Key recommendations
The report contains 26 recommendations altogether, the six key ones being:
- the exemption from health and safety laws for self-employed individuals whose work activities pose little or no risk of harm to others. It is estimated that this change would benefit 1 million people;
- the HSE should review all 53 ACOPs. The initial phase of the review should be completed by June 2012 so businesses have certainty about what is planned and when changes can be anticipated. The intention underlying the review is to ensure that ACOPS do what was originally intended and that is help employers understand and meet their legal requirements;
- that the HSE should undertake a review of sector and risk specific regulations (i.e. those which relate to one specific sector of industry) with a view to producing one single set of regulations per sector. It estimates that this should reduce the number of regulations by 35%;
- that the HSE should be given control of all local authority inspection and enforcement action, in order to give consistency between different local authorities and between the HSE and local authorities. It should also reduce the disproportionate number of local authority inspections of low risk businesses compared with the number carried out by the HSE on the more high risk businesses which it tends to regulate;
- to examine the "strict liability" principle which is to be found in many regulations. Currently, employers can be sued successfully without proof of negligence for breach of any health and safety regulation which imposes strict liability. The report recommends that the government should introduce the principle of ‘reasonable practicability’ into every such regulation where strict liability is not absolutely necessary or remove liability for the payment of compensation in the event of a breach; and
- that the government works more closely with the European Commission and others, particularly during the planned review of EU health and safety legislation in 2013, to ensure both new and existing health and safety legislation is risk-based and evidence-based.
The legal implications of Löfstedt
John Mitchell, partner at Blake Lapthorn, spoke to The People Bulletin about the legal implications of the report. He explains:
"The most immediate legal implication for employers is the possibility of being able to use the government's proposed new 'challenge panel' from the beginning of 2012. This follows the commitment by Chris Grayling, Minister for Employment, to allow businesses "to get the decisions of health and safety inspectors overturned immediately if they have got it wrong". It is not yet clear what decisions will be subject to challenge, nor what format the new panel will take.
"The next step of the government's plans that will have legal consequences will be the review of Codes of Practice. As Codes of Practice have legal effect, changes to them will be legally binding on businesses affected and employers will need to get to grips with the new provisions. If Codes are simplified to allow more flexibility, as has been proposed, a period of time will be needed for employers to adjust from a prescriptive to a permissive regime.
"At the same time, the proposed review of RIDDOR, CDM, PAT testing and Work at Height could have significant implications if duties under those regulations are simplified or relaxed.
"In the longer term, the introduction of a test of 'reasonable practicability' into regulations that currently impose strict liability might bring a reduction in compensation claims. However, the effect might be countered by an increase in legal costs for employers as they seek to defend claims that previously they may have admitted.
"By far the biggest potential change of all, however, is the announcement by the Government to remove health and safety controls from self-employed people whose activities pose no potential risk to others. On one view, this will not affect employers, as the definition of 'self-employed posing no risk to others' is likely to exclude anyone who is an employer. However, many employers currently interact in some way with the self-employed (e.g. as contractors or sub-contractors) and the legal implications of such relationships for both employers and the self-employed, if not detailed in the new legislation, will need to be considered carefully".
Industry response – a mixed bag
The report has generally been met with an enthusiastic response. Commenting on the recommendations, Judith Hackitt, the Chair of HSE, said:
"Professor Löfstedt's insightful report will go a long way to refocusing health and safety in Great Britain on those things that matter - supporting those who want to do the right thing and reducing rates of work-related death, injury and ill health.
"We must have a system of health and safety which enables employers to make sensible and proportionate decisions about managing genuine workplace risks.
"Simplifying and streamlining the stock of regulations, focusing enforcement on higher risk businesses, clarifying requirements, and rebalancing the civil litigation system - these are all practical, positive steps.
"Poor regulation - that which adds unnecessary bureaucracy with no real benefits - drives out confidence in good regulation.
"We welcome these reforms because they are good for workers and employers but also for the significant contribution they will make to restoring the rightful reputation of real health and safety.”
What’s missing?
However, there has been some concern regarding the recommendations for self-employed workers and that the report made no suggestions as to how the protection of employees in the workplace could be improved.
Brendan Barber, TUC General Secretary commented:
“Following last year's review by Lord Young, we've now seen yet another government review into workplace safety that has concluded that the current system is generally fine.
“Unfortunately, like Lord Young, Professor Löfstedt was only asked to look at the 'burden' on business, not the burden that the failings in the current system have placed on the two million people whose health has been made worse because of their work. Nor has it considered the more than 20,000 people whose lives are cut short every year as a result of a preventable work-related injury or illness. Because of this, not one life will be saved as a result and not one injury or illness prevented. This is very much a missed opportunity.
“Instead the report proposes removing up to one million self-employed workers from the protection of current safety laws. These people, who often work in the most dangerous of jobs, are already much more likely to be killed or injured. There is little doubt that removing the self-employed from the regulations will increase their risk of illness and injury and lead to a rise in the number of bogus self-employed in sectors like construction.
“While we welcome comments in the report on the need to address the major occupational health problems in the UK and to support union safety representatives, it is regrettable that no recommendations have been made on how to go about doing this.
“It is time the government stopped tinkering around with regulations to save business from non-existent 'red-tape' and instead started looking at what positive steps it could take to improve Britain's health and safety record”.
www.bllaw.co.uk/services_for_businesses/health_and_safety.aspxwww.hse.gov.uk
www.britsafe.org
www.tuc.org.uk