Simon Jones Memorial Campaign submission to an enquiry into health and safety enforcement, February 2004

 

This is a submission from the Simon Jones Memorial campaign to the inquiry into the work of the Health and Safety Commission and the Health and Safety Executive and the effectiveness of current arrangements to promote high standards of health and safety, February 17th 2004

INTRODUCTION
Simon Jones was killed at Euromin Ltd in Shoreham harbour on 24th April 1998. Simon was taking a year out from Sussex University before sitting his final exams. His death was horrific and entirely preventable. It happened because his employers made no attempt to comply with Health and Safety Law - a situation made possible because that law is not rigorously enforced.

The Simon Jones Memorial Campaign was set up by Simon’s friends and family to obtain justice for Simon, to campaign against vulnerable, poorly paid people being used to replace a properly trained and experienced workforce and to raise public awareness of the under enforcement of Health and Safety Law.

True justice would ensure that people like Simon would not be killed at work. In the absence of this we need to ensure that all work place deaths are properly investigated and that all undertakings comply with Health and Safety Law. To quote from the campaign literature, “People like Simon Jones get killed at work all the time and nothing gets done about it – not this time!” The Simon Jones Memorial Campaign is manned entirely by volunteers and receives no funding. We rely entirely on donations and fund raising events to cover our expenses. We are not affiliated to any political party or any other organisation.

1. THE CHANGING WORLD OF WORK
The DWP press notice of 16th January states, “In June 2000 the Revitalising Health and Safety strategy was launched with the aim of injecting impetus into the Health and Safety agenda and ensuring the approach remains relevant to the changing world of work over the next 25 years.”

When HSWA was first introduced most workers were directly employed by a company, which trained them. There was a permanent work force that knew one another and worked together as a team. Nowadays many companies and other undertakings are subcontracting out labour to employment agencies. This is particularly notable in such high hazard industries as construction, dock work, factory work and agriculture but is also prevalent in office work, teaching and nursing. The lack of a permanent group, the members of which know and understand one another, makes communication more difficult and increases the hazards of the job.

This large “flexible” workforce is not only denied any form of employment protection but it is also less protected by Health and Safety Law than directly employed workers.

One reason for this reduced protection is that the agencies themselves are unaware of their Health and Safety responsibilities. In September 2000 HSE published its research into recruitment agencies. They found that 80% of agencies considered the responsibility for an agency worker’s health and safety lay with the host employer. In fact as the agency is the employer, the responsibility is theirs.

There is also the fact that HSE itself may fail to recognise that an agency’s employees are not solely represented by those employed directly in the company’s offices, leaving the inspection of the agency to the local authority and ignoring the fact that the vast majority of the agency’s workers are not office based. Many agencies attempt to avoid their responsibility to employees by saying that the worker is self employed, but this assertion is belied by the fact that the agency pays wages, makes deductions for tax and insurance and dictates the place and hours of work.

Regardless of the fact that these employees are often being sent to dangerous workplaces, the agency does no risk assessment of the work to be undertaken.

Although MHSWR 1999 requires all employers to conduct a risk assessment, this requirement is commonly flouted by employment agencies. At best they make a simple check of working conditions during a phone call but in many cases no sort of check or assessment is made at all. HSC/HSE refuse to insist that a site visit is made to the host employer to assess the risks before the agency allocates an employee to a job.
This means that people like Simon are sent to a place of work not knowing what they will be required to do and with no prior knowledge of whether the place is well organised and supervised, or whether like Euromin it is seriously undermanned by untrained, casual workers with no supervisor on site and no attention paid to the requirements of HSWA 1974.

Sadly Simon’s case is not isolated, in October 2000, one month after the publication of HSE’s research into employment agencies, Michael Mungovan, a student at Brunel University, was sent by McGinley’s employment agency to work for Balfour Beatty doing railtrack maintenance. The agency had done no risk assessment for the job to which Michael was sent and therefore did not know that he had no experience of the work he was to do that night, that he was inadequately trained for the job and that he would be working unsupervised. Michael was killed at work.

These are only two examples of our unprotected workforce. The policy of subcontracting labour leads to many layers of responsibility but no accountability from those who employ these workers. The recent high publicity given to the plight of migrant workers, following the death of the cockle pickers at Morecambe Bay, illustrates again how inadequately our law protects workers who are not directly employed. It is not only agriculture and fisheries were these people are exploited but also in factories e.g. many are employed in the plastics factories in Hartlepool, working excessively long hours, which are injurious to health. HSE does not seem to be aware of the problem.

Despite the findings of its research in September 2000, HSE has made no suggestions as to how the situation can be remedied.

2. THE LEGISLATIVE FRAMEWORK
From the introduction of HSWA in 1974 until 1994 statistics show an improvement in Health and Safety at work. Deaths and injuries at work, though still unacceptably high, appeared to be on the decline. Since 1994 the figures have fluctuated a little but there has been little sign of improvement. It is true that we appear in a favourable light compared with our European neighbours.

However just because we look good compared with countries that are bad should not give us cause for complacency. Each of the 400 work related deaths and 30,000 major injuries in this country represents pain and suffering for the bereaved family, loss of income and increased expenditure by the bereaved, increased costs to the emergency services, the health service and the benefits agency. The negligent companies and their decision makers meanwhile experience little inconvenience.

As long as the law simply places responsibility on the “company” and not the decision makers within the “company” we are unlikely to see further improvement.

In June 2000, action point 11 of revitalising Health and Safety stated:

“The Health and Safety Commission will develop a code of practice on Directors’ responsibilities for health and safety…. “The HSC will advise ministers on how the law would need to be changed to make these responsibilities statutory…. It is the intention of ministers, when Parliamentary time allows, to introduce legislation on these responsibilities.”

There is no requirement in law for a director to inform himself of the safety/lack of safety in the working environment of his employees. This makes it virtually impossible to secure a conviction against a director or senior manager no matter how negligent or reckless their behaviour has been. They can simply say that they didn’t know what was going on and no matter how unlikely this assertion it is very hard to disprove it. In Simon’s case, James Martell had deliberately discarded the safe lifting hook, which the excavator firm had supplied, and in its place had hooks welded directly onto the clam-shell grab forcing workers to operate within its jaws. Even though he insisted that this dangerous modified system must be used unless he directed otherwise and even though he failed to employ sufficient workers or a supervisor and frequently absented himself from site, the defence successfully argued that he couldn’t be expected to know exactly how the system was being used that morning and he was therefore acquitted of manslaughter.

With such a defence possible, there is no incentive for a director to adopt the voluntary guidance introduced by HSC. It means that the most careless of directors/senior mangers escape accountability when they place employees at risk.

It is true that some companies have attempted to follow the voluntary guidance but HSE only surveyed very large companies and organisations and of these 15% had no arrangements in place to facilitate board level involvement in safety issues and had no plans to do so.

If the speed limit signs at the road side were for guidance only, few motorists would drive below 30 mph in a built up area. Even if all but 15% did so, this would still leave a dangerously high number of motorists driving at excessive speed. Only legislation backed up by effective enforcement has been shown to be effective. The same has been true for alcohol related road deaths. Government advertising campaigns had little impact but the introduction of legislation backed up by the breathalyser and consistent prosecution had a dramatic effect. We need similar legislation and enforcement to reduce work place deaths and injuries.

Sadly HSC has decided not to advise the government that legislation on directors’ duties should be made statutory. This despite the fact that in 2002, a poll by the British Safety Council of some of the top FTSE 500 companies showed that many company bosses believed profits are more important than the safety of their workers despite the prospect of strengthened legislation and unlimited fines for Corporate Killing. Shareholder profits and customer satisfaction were consistently rated above worker safety.

This should come as no surprise because company law effectively excludes the consideration of worker safety in its single minded policy to pursue profit. Directors are required to “act in good faith in the best interests of the company as a whole”. This duty has been generally interpreted by the courts to mean acting in the interests of shareholders by maximising profits. If introducing safer systems of work means extra expenditure on training, staffing levels, safer use of machinery etc this would reduce profits and effectively be contrary to company law. Prosecution rates and fines are so low that this has little impact on company profits.

To offset the pernicious prioritisation of profit over safety, directors must be made legally responsible for the safety of the work force.

At present only a few premises e.g. nuclear installations are required to apply for a licence to operate. For all other premises the only requirement at present is that machinery must be checked for safety. The method of its use however remains unchecked unless an inspector happens to observe dangerous usage or until incorrect usage results in death.

Simon’s case and evidence given to me by other bereaved relatives shows that this problem is widespread and just about anyone can set up in business using heavy plant or machinery. I feel that these undertakings should have to submit their modus operandi in advance to the HSE for approval. Only when they can satisfy HSE that they have designed a safe system of work should they be given a licence to operate.

One piece of legislative reform, which would inform the public of possible workplace hazards and could allow companies to learn from the past mistakes of others would be to require Health and Safety reports to be published, once it has been established that no further legal action is to be taken or three years after the investigation – whichever is the sooner. At present unless a public inquiry is ordered, the findings of the Health and Safety Inspector languish in a filing cabinet and no-one benefits save the negligent company.

3. ENFORCEMENT
More needs to be done to enforce Health and Safety legislation, particularly with regard to agencies that supply labour to construction, docks, factories, warehouses etc. An onsite visit should be obligatory to qualify for a risk assessment in these circumstances. It is difficult to see how anyone can assess risk if they have never seen the premises and have no idea of how well the site is managed. It is accepted that in very low risk undertakings e.g. offices and retail premises a site visit may not be necessary but the requirement to conduct a risk assessment should still be enforced.

Although a written assessment of risks is a good start point it is not sufficient simply to have the paper work in place. As Alistair Darling, Transport secretary, said in July 2002, “It isn’t enough to put in place processes – ticking boxes to show that the process has been followed. Checks are needed to see that they’ve actually done what they are supposed to do.” He was speaking of monitoring maintenance subcontractors but his statement is equally true of ensuring safe systems of work.

An audit of the work of the HSE undertaken by the CCA has shown that between 1996 and 2001 there was a 41% decline in the number of “contacts” with premises involving inspections. In the same period there was a 43.5% increase in investigations into reported injury and death. Investigations of adverse incidents are absolutely essential but the inference here must be that with insufficient resources one activity can only increase at the expense of another. Preventative inspections are also essential; we need to be proactive as well as reactive.

The recent report of the Transport Select Committee also emphasises this point. It noted that harbours have become the most dangerous workplaces in Britain with a death and injury rate overshadowing that in construction, coal-mining and quarrying. MPs have argued for tougher safety measures and enforcement and that more expert staff need to be employed. For all of Britain’s docks there are currently only 25 inspectors and none of them is dedicated to dock work.

Even when enforcement action results in prosecution, the penalties imposed by the courts are insufficient to act as a deterrent. In November 2003 the HSE announced that the average fine for a conviction on a health and safety offence had dropped by 21% from £11,141 in 2001/2 to £8,828 in 2002/3.

This shows that employers can kill, injure and disable workers in the knowledge that the worst they will incur is a comparatively small fine. Many cases involving the death of a worker are still being heard in the Magistrates Courts, which does not reflect the serious nature of the offence and where the maximum penalty is a £20,000 fine.

4. FUNDING/RESOURCES
HSE lacks the funding to properly inspect, investigate and prosecute offending companies. Few companies are visited more often than once in five years and many never receive a visit from HSE at all until a fatality occurs.

HSE employs 847 inspectors in its Field Operations Division; 243 of these are trainees leaving only 604 fully qualified inspectors. There are a further 500 inspectors responsible for hazardous industries such as oil and chemical refining, offshore gas and oil exploration and production and the nuclear industry. These 1300 inspectors cover the 740,000 premises currently known to the HSE. Many thousands of premises are not on the HSE’s database.

The result of these very low staffing levels means that on average a workplace is visited about once every ten years and that of the nearly 30,000 major injuries reported annually, HSE investigates at best 15%. In the construction industry one inspector is responsible for three London boroughs and the 4,000 new building projects in Scotland are policed by one inspector.

The lack of support staff means many inspectors spend more days in the office doing admin work than inspecting premises. As there are few regional offices, inspectors have to spend a long time travelling from base to reach premises to be inspected/investigated. Prosecutions are time consuming and HSE inspectors have to deal with these in addition to their usual workload.

This situation could and should be remedied by increasing both the numbers of inspectors and the numbers of support staff. Prosecutions should be handed over to the CPS or handled by a separate department so freeing the inspectors to do the specialised work for which they are trained.

5. SUMMARY
The changing world of work presents new challenges for the enforcement of Health and Safety law. Although HSE has conducted some research into this problem it has not implemented any strategy to deal with it. With fewer permanent contracts available and increasing numbers of migrant workers entering the country the problem of vulnerable, exploited, poorly protected workers is likely to increase.

The present legislation is insufficient to adequately address the problem of reducing death and injury at work because it allows the decision makers responsible for the systems of work which kill, to distance themselves from the incident and so escape responsibility. The imposition of legally binding health and safety obligations on company directors would redress the problem that company law requires them to maximise profits but does not require any consideration of the safety of the work force.

The secrecy surrounding health and safety reports means that the tax payers who pay for the report can never read it and benefit from its findings.

Enforcement action should be increased and no organisations should be allowed to avoid conducting a proper on site risk assessment before sending workers to a job. Employment agencies must be brought in line with other organisations. Prosecution should be more consistent and breaches of regulations, which result in death, should be prosecuted in Crown Courts. Fines should be related to the damage done. Ideally they should be a percentage – say 10% of the company’s annual turnover in order to have a better deterrent effect. Negligence resulting in death should attract a prison sentence.

More funds need to be made available to HSE to enable them to carry out their role effectively.

The present levels of inspection and enforcement mean that Britain is in contravention of its obligations under the Human Rights Act.

Article two states that it is the duty of a state to take action to prevent avoidable deaths and should it fail, it must inquire into that failure.

Most workplace deaths are preventable and this country is failing in both its legislation and its enforcement of that legislation to prevent avoidable deaths.