Health & safety at work: time for change

• DOI: https://doi.org/10.13169/instemplrighj.2.1.0058
• Pages: 58-85
• Published date: 01 January 2019
• Date: 01 January 2019
• Author: Phil James,David Walters

Health & safety at work

58

Health & safety at work:

time for change

Phil James and David Walters

ABSTRACT

After a brief review of the continuing unacceptable scale of work-related inju-

ries and ill health suffered by workers as they go about the task of earning

a living, this booklet provides a critical examination of the continued appro-

priateness of the Health and Safety at Work Act 1974. It does so through a

discussion of four issues seen as critical to the operation of the framework

of law established under the 1974 statute, including: the Act’s application to

current patterns of employment; the oversight and enforcement of employer

compliance with their duties; worker access to representation; and the effec-

tive resourcing and governance of the framework of law created by the Act.

On the basis of this discussion, a range of recommendations for reform are

suggested to address identified problems in each of these areas. The scale

and focus of these reforms supports a further argument that the time has

come to repeal the Health and Safety at Work and replace it with a more

appropriate and effective framework of law.

Executive summary

This booklet critically examines the continued appropriateness of the

framework of law established by the Health and Safety at Work (HSW)

Act 1974. It does so through an exploration of four key issues: the Act’s

application to today’s employment patterns and structures; the oversight

and enforcement of employers’ compliance with their duties; worker

access to representation; and the regulatory framework’s overall govern-

ance and resourcing.

The analysis points to the existence of major problems in each of these areas.

In particular, it highlights:

 the current failure of the 1974 statute to place obligations on lead organ-

isations in supply chains sufficiently, notwithstanding their potential

capacity to undermine health and safety standards in supplier organisa-

tions through the cost and delivery pressures they impose;

Health & safety at work

59

 the inadequate resources available to Health and Safety Executive (HSE)

and local authorities to monitor and enforce employer compliance and a

continued commitment on the part of regulators to using enforcement

action as a ‘last resort’;

 the misleading promulgation of ‘risk-based’ targeting of inspections as a

solution to this resourcing problem;

 a lack of worker representation in the majority of workplaces and hence

an absence of a key and effective component of ‘self-regulation’;

 a failure of the HSE to act as an independent and autonomous decision-

making body, rather than a reactive instrument of government policy.

In the light of these conclusions, a variety of recommendations are put for-

ward to address the identified weaknesses that serve to reinforce the health

and safety related proposals contained in the IER’s recently published mani-

festo for labour law.1 These encompass:

 placing the primary duty of care on ‘a person in control of a business or

undertaking’ (PCBU), rather than an employer, and defining the workers

to whom this duty applies in a way which includes non-employees who

carry out work connected with a PCBU’s business or undertaking at

worksites controlled by another organisation;

 substantially increasing the resourcing of HSE and local authorities in

order to significantly expand inspection numbers and hence the likeli-

hood of non-compliance being identified and penalised;

 supporting the above increase in inspection numbers via the adoption of

a more aggressive approach to enforcement on the part of HSE and local

authorities, and an increased ability to bring private prosecutions;

 loosening the current linkage in the Safety Representatives and Safety

Committees Regulations between union recognition and rights under

them in order to enable unions to represent members in workplaces

where they are not recognised;

 restricting the current option to directly consult workers over health and

safety matters in non-unionised workplaces and placing the duty to con-

sult on PCBUs, as opposed to employers;

 empowering representatives to issue ‘provisional improvement notices’

and to ‘stop the job’ in situations of serious and imminent risk; and

 re-constituting the governance of the HSE in line with United Nations

principles relating to the desirable status and functions of National

Human Rights Institutes.