This is how we can properly protect the health and safety of workers

Phil James, Middlesex University

Steve Tombs, Open University

David Walters, Cardiff University

David Whyte, 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.

IER

A think tank for the labour movement

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 ‘primary authority scheme’ which allows large companies to avoid legal obligations.

Reclaim rights

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

 

This blog was originally posted at http://www.ier.org.uk/blog/how-we-can-properly-protect-health-and-safety-workers on 26 May 2017

Better Regulation: better for whom?

Steve Tombs, Professor of Criminology

On 1st May, my new Briefing, ‘Better Regulation’: better for whom?, was published by the Centre for Crime and Justice Studies.

Better regulation

This Briefing, drawing on a recent monograph, placed the spotlight on the lack of effective regulation of pollution, food safety and workplace health and safety standards in the UK. An estimated 29,000 deaths each year in the UK are attributable to the effects of airborne pollution. Some one million cases of foodborne illness in the UK each year result in 20,000 hospital admissions and 500 deaths. Around 50,000 people die each year as a result of injuries or health problems originating in the workplace. These staggering figures are probably underestimates. The litany of lives shortened and health impaired to which these figures bear witness are also largely avoidable.

Yet as I documented in Better Regulation, the rate of inspection and enforcement actions for environmental health, food safety and hygiene, and health and safety have all been falling. This is not just a problem of infrequent inspections and lax enforcement. In the name of cutting red tape, governments of all political persuasions have, for over a decade, undermined independent and effective business regulation. Budget cuts under the austerity programme have compounded the problem. So too have moves to outsource and privatise regulatory and enforcement activity. Private companies are increasingly involved in ‘regulating’ themselves.

Taken together, these changes may mark the beginning of the end of the state’s commitment to, and ability to deliver, social protection. The story the Briefing tells is one of ‘avoidable business-generated, state facilitated violence: social murder. And, quite remarkably, it proceeds, daily – met only by academic, political and popular silence’.

The Briefing and its findings have received significant media exposure over the last week, including BBC 5 live Investigates with Adrian Goldberg, BBC News, The Observer, and UNISON. The right-wing, free market think-tank Adam Smith Institute published a rather cheeky critique of it, to which I responded.

Social Protection

Most rewarding of all, however, was coverage by Environmental Health News, the journal of environmental health practitioners, whose struggle to maintain a public service in the face of economic and political attack. I reproduce that interview here, in full…

Q and A with Steve Tombs and Tom Wall

Successive governments have portrayed regulation as a burden. But Professor Steve Tombs, head of social policy and criminology at the Open University, argues the drive to cut red tape has severely reduced the effectiveness of the agencies designed to protect the public. EHN caught up with him after his research was launched last week.

Why did you decide to carry out this research? 

For many years I have been interested in trends in enforcement of health and safety regulation, and it was clear that the shift towards better regulation had, and has, been having an effect on the level of enforcement in that context. So I was keen to understand what had happened in related areas – food and pollution control made sense in that respect. And I wanted to do so at local authority level, where the vast majority of enforcement in these spheres is done, but is something which has rarely been the subject of academic scrutiny.

Did your findings surprise you? 

Absolutely. As a social scientist I am used to gathering data which is messy and needs interpretation. But the quantitative data gleaned from public sources and Freedom of Information requests on enforcement, as well as the qualitative data from interviews with EHOs, is quite remarkable since it all points in the same direction – formal enforcement and enforcement practice is under severe pressure, nationally but especially at local authority level.

Why do you think the vital work of environmental health officers is often invisible to the public? 

Well, as many EHOs said to me, it’s the service that we – by which I mean consumers, communities, workers – only notice when things go wrong, such as an example of an outbreak of food poisoning or a local pollution incident.

What is the better regulation agenda about?  

Better regulation began ostensibly as an initiative to target inspection resources upon the businesses that were either in the highest risk areas, or less compliant, or both, so that regulators could achieve more efficient regulatory outcomes with less inspection – and, of course, less resource. It was a response to claims by business of over regulation and over inspection, and at a local level it was clearly premised on arguments about inconsistency in enforcement practices by different local authorities. To speak in political terms, however, it is clearly a big-business driven agenda designed to protect business from regulatory enforcement. And I heard that from many of the EHOs I interviewed also.

Why have successive governments seemed to embrace this agenda? 

For at least 20 years, the association of regulation and its enforcement with the idea of ‘red tape’, as a ‘burden’ on business, has gained strength. This has been an international trend, I think. In the UK I would say it has been particularly powerful because regulation and red tape have always by many been associated with the interference of the EU. But there are two attractions for any government in this agenda. First, it makes governments appear more business friendly, attracting and retaining business in the country and indeed in local areas. But, second, it offers an opportunity to withdraw resources from regulatory services, as according to this logic these are clearly not needed to the extent that had previously been thought – and governments, especially now in the context of austerity, are always looking for ways to reduce expenditures, especially where they can claim that this makes services more efficient!

What has happened to regulation under David Cameron? 

Cameron is ideologically opposed to these forms of regulation – speech after speech makes that abundantly clear, and I have to say that health and safety regulation and enforcement are a specific target for vitriol here. But more than that, the political initiative towards ‘better regulation’ has, since 2010, been overlain with the economics of austerity. And the latter has seen the DCLG hit harder than any other government Department, and on current spending plans this will continue to be the case until 2020 at least.

Would the Corbyn led Labour party would take a different approach? 

Well I would hope so. But let’s remember that the better regulation initiative started under a Labour government. Of course, that government was elected after 18 years in opposition and was dying to prove its business friendly credentials. A Corbyn led Labour Party looks and feels quite different, and I would hope it will take a more balanced approach to regulation. Certainly I have shared platforms with John McDonnell in the past where I have been documenting tends in health and safety enforcement and he has been clear that these trends need to be reversed; I would also hope, and expect, that this new party leadership would agree and act on this. I would hope a Corbyn led Labour party would take the same view of the work of regulators in general.  In particular, I am optimistic that they will see the work of EHOs for what it is – providing a crucial public service which benefits all of us, that is consumers, workers, local communities and in fact, I would argue, businesses themselves. I really think it is crucial to resuscitate the idea of public service, and oppose the idea that regulation is just red tape designed to somehow make all of our lives more difficult. I would hope a Corbyn led party would share that view.

What can EHOs who are concerned about this agenda do? 

That’s a very difficult question to answer, the EHOs I have met get on day-to-day doing their best with less and less and, as one put it to me, their ‘light is hidden under a bushel’. I think it is for others to try and challenge the agenda – EHN regularly documents the deterioration of the service, and I think the CIEH needs to be less defensive and be more vocal in representing the value of the work of its members. UNISON has done work in this area, but I think this should be a more central issue for them – it’s key to the public health agenda. And I think that some intervention by academics – who have some time, and resources – might also be useful.

The Adam Smith Institute claims the research is flawed because it doesn’t show a historical link between falling numbers of EHOs and rising preventable deaths. How would you respond? 

It’s rather odd to be criticised for not doing something in a briefing which I never set out to do therein – demonstrably linking a decline in enforcement capacity to an increase in risk – I’ll restrict myself to a few brief comments.

Increased deaths, injuries and illnesses are difficult to gauge because we know that most of the data in any of these areas is simply not robust enough to track trends over relatively short time scales.

How many of us who suffer some form of food poisoning which we link to something we’ve eaten or bought from a fast food outlet or supermarket business actually report that to the local authority? A very small percentage I think it’s fair to say.

Moreover, which of us knows that we are being subject to airborne pollutants that will shorten our lives as we go about our daily business – or, even if we did, could link a specific pollutant to its specific profit-generating source?

We also know that the majority of workplace injuries and work-related ill-health never get reported. So the state of data in this area makes it very difficult to undertake ‘the X causes Y’ type logic that would satisfy the intellectuals at the Adam Smith Institute.

Of course, what we can do is point to specific cases of death, injury or illness associated with an obvious form of non-compliance with law that would have been picked up by an inspection had there been one.

Radio Five Live, which today broadcast on issues covered by the Briefing, interviewed Debbie, a woman in Kirby whose 10-year-old daughter was hospitalised with salmonella poisoning. She was one of over 50 people in the area who contracted the illness after eating food from a takeaway. Contrary to Food Standards Agency statutory guidance, the business had not been formally inspected in 2 years.

Finally, the equation of lesser enforcement with greater risk seems likely even on a common-sense level. Consider this: the average workplace regulated by a local authority health and safety inspector is now statistically likely to receive a visit from an inspector once every 20 years. I would imagine all of us, however civic minded and potentially law abiding, would be less likely to buy a train or tube ticket if we knew we would only be checked that we had it once every 20 years.

 

The Q&A with Tom Wall was originally published in Environmental Health News, the online journal of the Chartered Institute of Environmental Health on 4 May 2016, at http://www.ehn-online.com/news/article.aspx?id=15514. Steve Tombs would like to thank colleagues at the Centre for Crime and Justice Studies, HERC, engage@liverpool and UNISON for their support in this project.

 

Corporate Killing With Impunity

Steve Tombs

International Centre for Comparative Criminological Research

The Open University

This week saw sentence passed following the eleventh conviction under the Corporate Manslaughter and Corporate Homicide Act, 2007 (CMCHAct). Pyranha Mouldings, a small kayak manufacturer, was fined £200,000 following the death of a worker in 2010. Allan Catterrall had been trapped and died in an industrial oven.

The Act, rolled out across the UK seven years ago to improve accountability for corporate killing, has so far failed dismally to undermine what is essentially corporate impunity for deaths at work. Part of this failure has its roots in the Act itself, namely the exemption guaranteed to senior managers and directors in section 18, titled “No Individual Liability”. Indeed, it was only after this exemption was inserted by the Government during the legislative process that widespread business opposition to the proposed law became muted.

In England and Wales and Northern Ireland, the common law offence of gross negligence manslaughter still exists as a mechanism to hold individuals to account for their part in corporate killing, while in Scotland there is an equivalent common law offence of culpable homicide. However, there is some evidence that one effect of the CMCHAct is that in England and Wales (there have so far been no convictions in Scotland), individual liability has been sacrificed for pursuing corporate liability. In three of the first four convictions (see Table 1), decisions to proceed with corporate manslaughter prosecutions were accompanied by decisions not to proceed with charges against individual directors for the offence of gross negligence manslaughter.

Thus, some legal commentators have already referred to a nascent trend, with the threat of charges against individual directors being the ‘bait’ for a corporate manslaughter charge: ‘an offer from… the company to plead guilty in exchange for the prosecution dropping charges against individuals might look like an attractive one to a director facing a risk of prison’.

Moreover, further scrutiny of these convictions reveals two additional, key failings of the law.

First, all of the companies successfully prosecuted thus far have been small or medium sized enterprises which could have been successfully prosecuted under the common law of manslaughter (see Table 1). Thus, the large, complexly owned companies for which the new law was ostensibly designed, have so far evaded its reach. Perhaps relatedly, all of the convictions secured to date relate to offences involving a single fatality – while a key intention behind the law was to encompass multiple fatality incidents.

Second, the level of fines passed at sentencing has been relatively low. Following the passage of the CMCHAct, the Sentencing Guidelines Council had issued ‘definitive’ guidance on determining appropriate levels of penalties following successful prosecution under the Act. These guidelines marked ‘a very considerable backstep’ from a [2007] draft guideline, which had proposed that fines should be calculated within a percentage range of company turnover. The ‘definitive’ guidelines removed any link with turnover, with the key rationale for setting the level of fine being the ‘seriousness of the offence’ and factors contributing to this. Calculated in this way, fines should ‘be punitive and sufficient to have an impact on the defendant’, so that the ‘appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds’. In fact, and as Table 1 indicates, only one fine has so far reached this putative minimum – although it should be noted that the fine of £500,000 was imposed upon a company which at the start of the trial was in fact in administration (Sterecycle [Rotherham] Ltd). Interestingly, a recognition of the poverty of current sentencing practice under the Act has prompted a new set of draft guidelines, currently under consideration, in which it is proposed that there be a more explicit link between fines and turnover – although the proposal is focused on larger sized companies, none of which have yet been convicted.

Each year in the UK, up to 50,000 workers die from fatal injuries and work-related illnesses, of which a significant but unknown proportion are likely to be the result of legal breaches by their employers. This annual total ranks highly in comparison with virtually all other recorded causes of premature death in the UK, and dwarfs the just-over 600 ‘conventional’ murders recorded in the most recent figures across the three jurisdictions of the UK. Such observations alone make the rate of convictions under the CMCHAct look like a spectacular failure on the part of police forces and the Crown Prosecution Service. The CMCHAct is beginning to look very much like another weak, and at best, symbolic attempt to hold to account companies which kill – one which barely dents the impunity which corporations continue to enjoy as they put profits before human lives.

Table 1. Convictions under the Corporate Manslaughter and Corporate Homicide Act, 2007

Table 1 Convictions under the Corporate Manslaughter and Corporate Homicide Act 2007