Mending the safety net

The much awaited report by Professor Ragnar Loefstedt into the UK’s health and safety regime was published in November 2011. Together with an advisory panel made up of three legislative representatives (one for each of the Conservatives, the Labour party, and the Liberal Democrats), two employer representatives and one small business representative, Professor Loefstedt published his 106-page report entitled “Reclaiming health and safety for all: An independent review of health and safety legislation” to a generally positive reception.

The Government has undertaken to take forward his recommendations “vigorously”; indeed, there is an indication that the Government intends to go further than the proposals within the report. This article considers the background to the report, the principal recommendations contained within it, and the ramifications this will inevitably have on corporate Scotland.

The review in outline

As part of the Government’s plans to reform the UK’s health and safety regulatory framework, the Minister for Employment, Chris Grayling MP, commissioned an independent review of health and safety legislation in March 2011. The Government’s ultimate aim is to reclaim the reputation of health and safety that has been, in the eyes of many, badly damaged by the excesses of the compensation culture.

Chaired by Ragnar Loefstedt, Professor of Risk Management and the Director of the Centre for Risk Management, King’s College London, the report considers the opportunities for reducing the burden of health and safety legislation on UK businesses, whilst maintaining the progress made in improving health and safety outcomes.

The report undertakes a review of the current regime, focusing on simplifying the framework, the scope and the application of the 200 or so statutory instruments and 53 approved codes of practice (ACoPs) owned by Health and Safety Executive (HSE).

Professor Loefstedt makes around 26 recommendations, aiming to reduce requirements on businesses that do not lead to improved health and safety outcomes. The hope is that the recommendations will be delivered by April 2015, though a number have target dates as early as summer 2012.

Impact on the self-employed

In an effort to bring the UK in line with other European countries, and reduce the red tape culture, Professor Loefstedt recommends “Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others”.

Taking a pragmatic and arguably sensible approach, Professor Loefstedt maintains that legal duties on businesses should be based on the level of risk in a particular workplace and not the size of the operation.

Review of strict liability regulations

Strict liability is ubiquitous in health and safety regulations. Professor Loefstedt is critical of the reliance on strict liability duties, specifically by employees against employers in raising compensation claims. There are certainly occasions when the omission of a defence of reasonable practicability has the potential to impact unfairly in civil matters.

At present, where strict liability applies (which is to a significant number of offences), an employer may be found liable to pay damages to an injured employee, despite having taken all reasonable steps to protect that employee from harm. To that end, the report recommends that “regulatory provisions that impose strict liability should be reviewed by June 2013”.

The recommendation includes an attempt to address any perceived imbalance against the prudent employer: either a qualification, based on a reasonable practicability defence, or an amendment aimed at preventing civil liability from attaching to a breach of those provisions. Again, applying a commonsense approach, the Government is in agreement with this recommendation. It will be interesting to see the extent to which this will address the perception that the UK has become more litigious over the last two decades.

Approved codes of practice

The HSE currently has 53 ACoPs, intended to assist dutyholders understand and meet their health and safety obligations. The reality, of course, is that the documents add a degree of complexity and further paperwork, and ultimately thwart the intended benefits. Professor Loefstedt recommends that: “the HSE should review all its Approved Codes of Practice. 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 Government has accepted this proposal, and indeed the timeframe suggested. The huge degree of work that will be required to conduct the review cannot be underestimated, but it is clear that the emphasis must be on providing clarity which is patently lacking at present.

Enforcement: the role of the local authority

Given the current “twin peaks” system, in which both the HSE and the local authority have varying degrees of responsibility and authority regarding enforcement, Professor Loefstedt is of the view that this has led to an inconsistent approach. As a result, the report recommends a single body directing all enforcement: “I recommend that legislation is changed to give HSE the authority to direct all local authority health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces”.

It is hoped that by eradicating the inconsistencies, businesses will not feel the need to go beyond what is legally required of them, but will instead be allowed the opportunity to focus on what is important.

Professor Loefstedt also expresses a desire for swifter prosecutions. The recommendation is that those involved should work together with the aim of commencing health and safety prosecutions within three years of an incident occurring. It seems, from our perspective, that in fact the majority of prosecutions take place within that timeframe anyway. But having a rule will provide greater certainty.

Will it deliver?

Whilst there are 46% fewer health and safety regulations now than we had 35 years ago, Professor Loefstedt’s proposals seek to simplify matters further. The report indicates that the current regime is “broadly fit for purpose”. But it is fair to say that the Professor and his team have identified a number of ways in which it can be improved. On balance, it is hoped that the report will achieve all it sets out to do, principally in reducing the burdens currently placed on businesses in terms of overly onerous health and safety regulations.

As a by-product, but of equal importance, is the hope that the report will reinstate in the public a faith in the health and safety regulations which has been waning. From a less legalistic point of view, the report raises interesting points regarding society’s general approach to risk. That is likely to provoke yet further debate.

At the time of writing, the Lord Advocate, Frank Mulholland QC, is actively discussing ways to bring about prosecutions under the Proceeds of Crime Act 2002 against companies who fail to protect employees against accidents. It is clear that as prosecutors turn their attention to more lateral approaches, companies must take greater heed of the duties and responsibilities incumbent upon them.

The report can be viewed in full via the following link:
http://www.dwp.gov.uk/docs/lofstedt-report.pdf