06 July 2018

By Phil James, Middlesex University

Too many workers and their families continue to 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, along with the emotional and financial costs they cause. Yet employing organisations are rarely held accountable. According to the Health and Safety Executive (HSE), the majority of the associated costs are borne by those harmed, their families, and the taxpayer in benefits and health care.

In its Manifesto for labour law, the Institute of Employment Rights (IER) focuses on reforms in key areas – the central statutory duties of employers, worker representation, the better enforcing of statutory duties and penalising of non-compliance, and access to sick pay and compensation for those harmed.

Modern world

There is a clear need for a framework of law that better addresses two important features of labour market change – the growth of contingent employment and the extent to which vulnerable workers are concentrated in industries where lead firms determine the conditions in which their suppliers set wages and conditions.

The IER argues that this could be done by using the Australian model Workplace Health and Safety Act and:

• imposing the primary duty of care on those ‘in control of a business or undertaking’, rather than an employer;
• defining a worker to whom this duty is owed as anyone who ‘carries out work in any capacity for a person conducting a business or undertaking’; and
• stating that a workplace for these purposes is any place ‘where a worker goes, or is likely to be, while at work.’

These changes would impose statutory health and safety obligations on those running businesses in respect of all premises where work for them is carried out and all workers engaged on this work. It would considerably extend the coverage of statutory health and safety duties.

Worker representation

International evidence indicates clearly that systems of worker representation and consultation can improve both health and safety management and outcomes.

It is also clear that as workplace union recognition has fallen, so has the coverage of safety representatives appointed under the Safety Representatives and Safety Committees Regulations 1997. There is an obvious need to remedy this, while enhancing the powers of representatives.

The IER calls for:

• Loosening the current linkage in the 1977 regulations between union recognition and safety representative appointment to enable unions to represent members in workplaces where they are not recognised, effectively generalising the rights currently possessed by Equity and the Musicians’ Union;
• Extension of the duty to consult over health and safety matters to those in control of businesses and undertakings in relation to all categories of workers (not just employees); and
• Empowering representatives to issue ‘provisional improvement notices’ and to ‘stop the job’ in situations of serious and imminent risk.

In addition, IER argues health and safety should be encompassed within a new system of sectoral collective bargaining (see: Wage war).

Enforcing standards

Despite evidence of widespread non-compliance with health and safety laws, successive governments have cut the resources that HSE (and local authorities) have to monitor and enforce compliance with statutory health and safety requirements. As a result, inspector numbers have fallen dramatically. It is no surprise that inspections have also declined in a context where government has (inappropriately) defined whole sectors of economic activity as ‘low risk’ and exempt from proactive inspections (Hazards 120).

The IER argues that these reductions are unacceptable and mean that the UK government is failing to honour its International Labour Organisation (ILO) commitment, under the ILO convention 81 on labour inspection, to ensure that workplaces are “inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.”

IER calls for significant expansions in inspector and inspection numbers, as well as the removal of the current prohibition on unannounced inspections to ‘low risk’ workplaces. It also argues the ‘primary authority scheme,’ which allows large companies to avoid legal obligations, should be abolished.

Penalising non-compliance

It cannot be credibly argued that the government is compliant with the requirement of Article 17(1) of ILO Convention 81 that ‘persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning…’.

For example, in 2016/17, there were only 554 prosecution cases instituted by HSE. Even when prosecutions are successfully brought, the penalties imposed are low; the average penalty for all workplace safety offences prosecuted in 2015/16 was just under £58,000, while that for those relating to fatal injury was £62,148.

To address this situation the IER recommends:

• A scale under which courts are advised to impose fines falling within specified percentages of turnover;
• A new tripartite standing body to review sentencing in health and safety offences and make regular and binding recommendations;
• An enforcement policy that places more emphasis on inspectors using their powers to issue enforcement notices and initiate prosecutions, including on indictment;
• A new, discrete unit within the Crown Prosecution Service solely responsible for considering cases of corporate manslaughter; and
• Removal of the current requirement under the Health and Safety at Work Act for unions to secure permission to initiate private prosecutions where employers are failing to comply with their legal duties.

Helping those harmed

Under the Enterprise and Regulatory Reform Act 2013, the ability of workers to bring civil actions for breaches of health and safety regulations was removed.

Ill and injured workers all too often receive insufficient support to enable them to retain their jobs and less than half of employers – and a much smaller proportion of private sector ones – operate sick pay schemes, with the result that most private sector workers absent from work through injury and ill-health receive, at best, Statutory Sick Pay.

The IER argues that these arrangements effectively penalise those harmed through their work activities. It wants:

• Re-establishment of the right for workers to seek compensation through civil actions for breaches of statutory duty;
• Universal entitlements to sick pay at a substantial proportion of normal pay; and
• New duties on employing organisations on the rehabilitation and return to work of ill and injured workers.
Most of the changes in this IER reform agenda could be implemented relatively speedily.

Given the Health and Safety at Work Act was established over four decades ago in a very different world of work, there would seem to be a strong case for undertaking in the longer term a comprehensive review akin to that undertaken over the period 1970-72 by the Robens Committee.

As with this Committee, such a review should be undertaken by a combination of academic specialists and representatives from both industry and the trade union movement. It should also have an independent chair – rather than, as with most recent health and safety reviews, a former or current politician or a business person.

Originally published in Hazards Magazine