Stick or bigger stick?

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The European Commission is challenging the UK for not being tough enough on factory accidents. John Dunn reports

The Health and Safety Executive (HSE) should prosecute three times as many cases as it does, says worker and public safety campaigning group, the Centre for Corporate Accountability.

Local authorities should make the improvement of health at work a national enforcement priority, urges the Rogers Review of local authority regulatory services published in March.

And the Macrory Review of Regulatory Penalties out last November suggests enforcers, such as the HSE, could use fines to keep factories in order instead of prosecuting them in the criminal courts.

Yet, when the HSE bows to government pleas to produce a plan to reduce the burden of health and safety regulation, it is roundly criticised for not doing enough to make life easier for business.

In a review of the HSE's simplification plan last year, the Better Regulation Commission (BRC) said the HSE was not doing enough to ease up on well-run firms that had independently certified health and safety systems in place - so-called 'earned autonomy' or 'earned recognition'.

The BRC was set up by the government as part of Gordon Brown's better regulation initiative to loosen regulatory red tape on UK business competitivety.

In its review of the HSE's plan, the BRC said: "The HSE should review the extent to which it can move towards a model based on earned autonomy. We would like to see the HSE looking more seriously at this approach as a means to achieve significant reductions in regulatory costs without a significant increase in the risk of accidents."

Myth of the month

Oh, and the HSE has banned ladders at work, hasn't it?

Er, no, it says. In its myth of the month for April 2007 (see http://www.hse.gov.uk) the HSE gets its public relations act together to rebut press stories that it has banned stepladders and ladders. And in its myth of the month for May it dismisses another popular misconception that health and safety risk assessments must always be long and complex.

Confused? Is it any wonder, then, that according to the Forum for Private Business (FPB), the burden of health and safety regulation is becoming too heavy for smaller firms. In a recent survey of small and medium- sized companies across the UK, the FPB found that small firms were spending two working days a month dealing with health and safety matters.

FPB chief executive Nick Goulding said: "The statistics show the amount of time being spent on health and safety is a real distraction from the day-to-day running of a smaller business."

As one health and safety legislation expert told Food Manufacture, "Only two days? I'm surprised it's as little as that."

Corporate Manslaughter Bill

And to add to the confusion, there is the Corporate Manslaughter Bill around the corner. Although it has had a somewhat rocky ride between the House of Commons and the House of Lords, it looks set to hit the statute books sometime later this year.

But David Young, partner in regulatory affairs at Eversheds the solicitors, doesn't believe that the Corporate Manslaughter Bill will help to improve health and safety at work .

He says: "I don't think it is necessary. It doesn't provide for any greater fines; it doesn't provide for any different kind of punishment; and it doesn't provide for punishment of individuals, such as disqualification of directors."

It is purely aimed, he says, at labelling an organisation guilty of manslaughter. "So it is directed towards brand reputation. But even under existing legislation, whether you are a Cadbury, a BP or an ICI, or whatever, that degree of brand or reputational damage has been done by being associated with a prosecution or major investigation."

He says it is a poorly conceived piece of legislation because it contains directions on how juries should reach their verdicts.

"It is a reasonable interpretation to say that the government does not trust judges and juries to reach decisions without telling them what to think. There is a whole section that tells a jury what it must consider and what it might also consider. There aren't too many pieces of legislation that contain that degree of direction," he adds.

Worse, says Young, is that it is proposed that juries can take 'attitude' into account when coming to a decision in corporate manslaughter cases.

"So far, I can't think of any single piece of legislation where 'attitude' is a factor in committing an offence," he says, and this betrays the real motive behind the legislation.

It is nothing to do with fining companies large sums for getting health and safety badly wrong, because the powers to impose those fines already exist under health and safety legislation and are being exercised.

And because the Bill is aimed at organisations, there is no provision for sanctions against individuals.

"The only additional measure in the bill that doesn't exist in health and safety legislation is the proposal to give the court power to order a convicted organisation to self-publicise its own conviction in whichever way the court decides."

EC challenge to the UK

But there is something on the horizon that is much worse than just another badly conceived piece of UK legislation. This time the villain of the piece is, you guessed it, the European Commission (EC).

According to Young, a couple of years ago, the EC challenged the way in which the UK's health and safety law was structured. The case was heard last year in the European Court of Justice and the Advocate General's opinion was published in January.

Young explains the ramifications thus: "UK health and safety is all about a company's obligation to discharge a health and safety duty towards employees and non-employees (ie visitors) by taking such steps as are reasonably practicable to ensure their health and safety at work." But, says Young, the EC argued that definition did not meet the provisions of its own 1989 Framework Directive on health and safety.

He says: "Essentially, in our system, employers can look at a risk and the measures that would be needed to eradicate or reduce that risk. And if the risk is sufficiently small and the cost of taking the necessary measures disproportionately large, it is legitimate for an employer not to take those steps and still be compliant with UK law.

"The EC doesn't like that. It said its framework directive required a higher level of responsibility - which is that wherever it is technically and scientifically possible to take steps to provide protective measures, the employer would be obliged to take them."

The European Court of Justice has now heard the case, says Young, and the Advocate General has issued an opinion, which the EC usually - but not inevitably - follows in its final judgement .

"Now the advocate's judgement, for something like 134 of its 140 paragraphs, finds in favour of the UK, adding that the EC had imposed too high a burden.

Is the bar being lowered?

"But he then goes on to say, in the final six paragraphs, that if what the EC was really trying to contend was that the UK's approach, in terms of reasonable practicability, was lowering the bar too much, he would be sympathetic to that view. And if that was the basis on which the EC put its case, then he would find in favour of the EC."

But, whichever way the European Court of Justice decision goes, and it is due any day now, it has opened a can of worms for UK health and safety law, suggests Young.

If the decision goes against the UK, we will have to go back to the drawing board on health and safety law, he says.

"Our entire health and safety legislative framework, as it has been drafted over the past 30 years, will need looking at.

"And even if the EC finds in favour of the UK, there is now a judicial opinion and some political impetus and momentum towards the view that somebody needs to look at the way the UK interprets the framework directive.

"Personally, I think the European Court of Justice will agree with the Advocate General and find in favour of the UK - that is the more likely outcome.

"But the rumblings will have started. And it could herald a very significant change to our health and safety system." FM

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