Last March, professor Ragnar Lofstedt, director of the King’s Centre for Risk Management, was commissioned by the Department for Work and Pensions to conduct an independent review of health and safety legislation in the UK. He was asked to examine whether, on the balance of risk and evidence, current regulations were still appropriate, and to identify opportunities for reducing the legislative burden on businesses while maintaining the improvements made in health and safety outcomes.
In his report published in November (www.dwp.gov.uk/docs/lofstedt-report.pdf), Lofstedt concludes that there is no need for a radical overhaul of the legislation, considering that it is broadly fit for purpose and rightly places responsibility on those who create the risks. He suggests instead that problems stem from a misunderstanding of the regulations and their application, leading businesses to go beyond that which is proportionate. Lofstedt makes a number of recommendations to remove, revise and clarify health and safety regulations to consolidate the legislation and ensure that enforcement bodies are targeting businesses that pose the greatest risks.
The report is an important step towards reinstating common sense in health and safety legislation. It follows a 2010 report, Common Sense Common Safety, in which Lord Young recommended that health and safety legislation be consolidated and made more accessible to businesses. The Lofstedt report forms part of an overall plan to reform the UK’s health and safety system, and in its response to it (www.dwp.gov.uk/docs/lofstedt-report-response.pdf), the government committed to implementing all its recommendations on or before his suggested timetable.
The report makes a number of recommendations which may affect the utilities industry:
Strict liability offences. The report recommends that all strict liability offences (those that attract liability without requiring any proof of fault by the defendant) be reviewed by June 2013 with the intention of qualifying those regulations with what is reasonably practicable where strict liability is not necessary, or amending them so that civil liability shall not attach to breaches. This would bring some welcome relief to employers in the utilities sector, but much depends on the actual regulations amended.
The report recognises the ambiguity that surrounds the interpretation and application of what is reasonably practicable, leading to excessive or insufficient measures being taken. The current Health & Safety Executive (HSE) guidance to inspectors does little to assist duty holders, because it merely provides obvious examples. Regulators have not been helpful as a source for specific advice, given that the HSE, for example, is an enforcement body and not an advisory body. The courts have gone some way to defining this concept and acknowledge that foreseeability of risk is relevant to the question of what is reasonably practicable, but ultimately it is a balancing exercise for the employer to show that all reasonably practicable steps were taken, balancing risk against the cost, time and effort to control it.
Lofstedt recommends the HSE continue to assist businesses in understanding what is reasonably practicable and suggests using the HSE website as a forum for sharing practical examples as well as issuing guidance. While this is an improvement, it
may not be realistic to hope for any prescriptive guidance.
Approved codes of practice. The report recommends the HSE undertakes a review of all its approved codes of practice to ensure they remain relevant and unambiguous, appropriate and up to date. The initial review should be undertaken by June 2012. The codes should help define ambiguous terms and assist utilities with what might be reasonably practicable, to make it easier to identify what is required and avoid over-compliance.
Sector-specific consolidations. Lofstedt considers the sheer number of regulations rather than the regulations themselves to be a cause of confusion and recommends a programme of sector-specific consolidations, to be completed by April 2015. The utilities sector is not identified as a priority for this but could be affected down the line because the report suggests consolidation should be rolled out to other industries going forward. These recommendations, together with ongoing HSE plans, aim to reduce the current number of regulations by more than 50 per cent while ensuring the health and safety of employees and the general public.
Revocation, amendment or clarification of specific regulations. The report recommends the review of a number of specific regulations that are considered unduly burdensome on businesses. For example, the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 and its associated guidance have been targeted for review by the end of 2013. Lofstedt recommends the clarification of reporting requirements and procedures to make compliance easier and to improve the quality of the information collected. The report also recommends a review of the Work at Height Regulations 2005 to remove existing confusion about the application of the regulations in practice and prevent over-compliance through disproportionate responses.
Enforcement responsibility. To achieve consistent and targeted enforcement activity, Lofstedt recommends the HSE be given the authority to direct all local authority investigation and enforcement activity. It is hoped this will avoid the inevitable difficulties of dividing enforcement responsibility between the HSE and local authorities, including variations in enforcement and the creation of artificial barriers to the efficient targeting of activities because local authorities can only consider workplaces within the area they control.
There is also an overarching recommendation that the government work more closely with the European Commission and others to ensure a risk-based rather than hazard-based approach for new and existing European legislation to overcome inherent differences and confusions in terminology across member states.
Lofstedt considered but decided against the adoption of roving health and safety advisers, as in Sweden, due to the cost implications and additional layers of administration for small businesses. However, he notes the positive effect of actively engaging employees in matters of health and safety. This should be considered by utilities as part of their continuing efforts for compliance.
Lofstedt’s recommendations have the potential to reduce unnecessary financial and administrative health and safety burdens for utilities. We hope the HSE will use them to promote a more business-friendly system for health and safety in the UK. However, much will depend on the implementation of these measures and the extent to which the aims are achieved.
Rob Elvin and Hayley Schofield work in the environmental, safety and health practice of Squire Sanders.
Accidents at work statistics
The latest figures published by the Health & Safety Executive show that during 2010/11 there were 171 fatalities at work, with businesses losing a total of 26.4 million working days to work-related illness or injury.
This article first appeared in Utility Week’s print edition of 20 January 2012.
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