26 May 2017

By Phil James, Professor of Employment Relations at Middlesex University; David Walters, Professor of Work Environment at Cardiff University; Steve Tombs, Professor of Criminology at the Open University; and David Whyte, Professor of Socio-legal Studies at the University of Liverpool

Too many workers and their families suffer from the failure of their employing organisations to provide safe and healthy working conditions. Injuries, acute and chronic ill-health and death occur all too frequently, also generating emotional and financial costs. Yet employing organisations are rarely held accountable for these outcomes. In fact, most of the associated costs are borne by those harmed and their families, and the taxpayer through the costs of paying benefits and providing health care.

It is also clear that the risks faced by workers vary not only in relation to the type of work they do but the basis on which they do it. Temporary workers and those deemed to be self-employed are, for example, significantly more likely suffer injuries. Indeed, while the self-employed constitute around 15% of employment, they account for 30% of workplace fatalities. Those working in SMEs have similarly been found to experience proportionally greater serious injuries and fatalities than those working in larger enterprises. Furthermore, evidence suggests that this in part stems from how large, powerful purchasing organisations can undermine health and safety standards in their (often smaller) suppliers through the price and delivery demands they impose.

To add insult to injury, current government policy, in failing to comply with relevant International Labour Organisation (ILO) requirements, exempts from inspection workplaces in which millions of workers earn their living through arbitrarily deeming them to be ‘low risk’. This means that some workers are more equal than others when it comes to the likelihood of their employer being held accountable for a failure to comply with their legal duties. Meanwhile, all employing organisations are operating under less and less external oversight: over the last decade the numbers of HSE and local authority inspectors have fallen by over a third, and all forms of enforcement action have declined dramatically – by 60% in the case of convictions relating to organisations in the local authority enforced sector.

None of this is either acceptable or inevitable. Changes to the current framework for regulating workplace health and safety could change the situation radically. All that is needed is a political will to take the necessary action.

The IER argues that such action, as a minimum, needs to include:

Equalising the application of statutory health and safety law by:

• Amending the Health and Safety Act to impose its core duty to protect workers on to ‘businesses’ rather than employers and to make clear that it therefore covers any person whose work activities are influenced and directed by them;
• Reinforcing this change by making clear that the duty covers all types of workers and applies to wherever they go, or are likely to go, while at work;
• In some cases, further reinforcing it by imposing requirements on those at the head of supply chains in respect of the management of health and safety lower down them in sectors where this seems viable and necessary.

Re-introducing Sectoral Collective Bargaining

The re-introduction of Sectoral Collective Bargaining (as advocated by the Manifesto on Labour Law and adopted by the Labour Party) where, in each industry, unions and employers negotiate a collective agreement binding on all employers and workers in the industry will not only set minimum pay, terms and conditions but will also:

• impose new mechanisms for the appointment of workers’ safety reps with powers to inspect and, when necessary, stop the job;
• access for trade union safety officers to inspect and, when necessary, stop the job;
• the appointment of joint health and safety committees;
• procedures for the introduction of new technologies and substances; and
• a dispute resolution procedure to avoid or resolve many of the current issues for which there is no other alternative but court proceedings.

Enhancing the rights of workers to participate in health and safety matters via:

• Providing that in the absence of a recognised trade union an appropriate non-recognised one has the right to appoint workplace health and safety representatives;
• Giving unions the power to access workplaces in which they have members and to undertake inspections in them where there are reasonable grounds to believe that there is non-compliance with health and safety laws;
• Empowering health and safety representatives to issue provisional improvement notices and to stop work they deem imminently dangerous;
• Providing unions with the capacity to initiate private prosecutions;
• Requiring businesses to consult all workers covered by the above core health and safety duty.

Creating a more rigorous regime of health and safety inspection by:

• Ensuring inspection and enforcement regimes are ILO compliant;
• Repealing current policies which prohibit unannounced inspections to low risk workplaces;
• Considerably increasing the numbers of inspections carried out by HSE and local authority inspectors, including those undertaken on a random, rather than on (an alleged) ‘risk-based’ basis;
• Providing government funding to recruit necessary inspectors to support an expansion of inspections and enforcement;
• Abolishing the ‘preferred authority scheme’ which allows large companies to avoid legal obligations.

Enhancing the penalising of illegal and criminal health and safety offences through:

• Formulating an enforcement policy that places more emphasis on inspectors making use of their powers to issue enforcement notices and initiate prosecutions, including on indictment;
• Undertaking regular monitoring - by the Department of Justice, the Sentencing Council for England and Wales and the Scottish Sentencing Council - to ensure that sentencing practices are compliant with existing sentencing guidelines;
• Providing for these guidelines to be kept under review by a new, democratically constituted, standing body;
• Establishing a new, discrete Unit within the Crown Prosecution Service solely responsible for considering cases of Corporate Manslaughter.

Improving the recompense ill and injured workers receive by:

• Re-establishing the right of workers to seek compensation through civil actions for breach of statutory duty;
• Introducing universal entitlements to sick pay that amounts to a substantial proportion of normal pay;
• Imposing new duties on employing organisations in respect of the rehabilitation and return to work of ill and injured workers.

These policies build on the IER's Manifesto for Labour Law - click here to read more and purchase your copy