Meeting with Health and Safety Executive

Notes of a meeting between between Simon’s parents and the Health and Safety Executive 1 August 2002

Anne Jones, Simon Jones Memorial Campaign
Chris Jones, Simon Jones Memorial Campaign

Stephanie Trotter, barrister
Bill Callaghan, Health and Safety Commission chair
Peter Graham, Health and Safety Commission strategy director
James Turner, Health and Safety Executive solicitors’ office
Neil McKay, notes

AJ The HSC is now under the Dept of Work and Pensions. Who is the new minister responsible?

BC I have met Smith, the secretary of state. They have yet to appoint a minister.

AJ How long have we been without a minister?

BC There has always been a secretary of state. After Stephen Byers resigned at the end of May, there were changes made. The government looked at HSC/E, and put it temporarily under the dept of transport. I was told I had to report to Darling, then to Jamieson. I feared that we might be under transport for too long. We are an independent health and safety regulator, and it is wrong for us to be attached to a sponsoring department (e.g. the rail industry). There are advantages to being under a dept with some work focus.

AJ That’s interesting because when I phoned the Department for Transport and asked if Alistair Darling was overseeing Health and Safety I was told, “No, he is only minister for transport.” You say you are not influenced by business. Yet we have been told that a licensing scheme would be too expensive for companies. This disregards the true cost of work-related deaths to the health service, the HSE, the CPS, etc. Simon’s was only one of over 300 deaths that year. Euromin had no risk assessments from 1994 to 1998. They checked their machinery, but not the way it was used. Harris was only trained to use the Liebherr as an excavator, not as a lifting machine. He had had no safety training, and had never seen the safety manual. Martell had never heard of docks regulations, and said, “We come under construction regulations.” In court, Walker, his defence counsel, said, “Docks Regulations? What’s that?” Martell was ignorant of the ACOP, by which he should have brought the docks regulations to the attention of his employees. Somehow, Euromin managed to get classified as “medium risk”. Martell’s “core workforce” was all casuals, except Grant and Harris. After Simon was killed, Martell offered all the casuals permanent contracts. Only two refused: Jodie Taylor and Sean Currey. There is one loophole, which should be easy to correct: if there are fewer than 5 employees, there doesn’t need to be a written risk assessment. This exemption should go, and all firms should be required to do a written risk assessment. Chris Barringer said that Euromin had employer’s liability insurance; some firms don’t even have that.

ST Is there any hope of getting this change?

BC At the moment, all firms must have a risk assessment. It does not always have to be written. This is covered by Management of Health and Safety at Work Regulations (MWSR) 1999. Some issues we may be able to work on; others we can’t. There may be a loophole: I want to check this. If a duty holder has 2 permanent and 10 casual workers, does that count as 2 or 12 workers? My understanding is that all are workers, and the courts have found this, even with labour-only subcontractors. Some firms may try to pull the wool over workers’ eyes. There is a duty under Health and Safety at Work Act (HSWA) 1974 section 2. The commission has discussed this: George Brumwell has done some work on it. It is impossible to tie up tax, NI and health and safety law into one bundle.

ST Please can we have this about risk assessments in writing?

BC I will look into the dividing line between “employees” and “all workers”.

AJ When Jodie Taylor was working in the hold, he was 17 years old. I am sure that is illegal. Martell was ignorant of MHSWR 1999. Why was the agency not prosecuted? I have had arguments with the DTI about the meaning of “suitable and safe”. The agency can’t have made sure the job was suitable and safe because they didn’t know what job Simon was going to do.

CJ This happened in the Michael Mungovan case, as well.

AJ Personnel Selection sent Simon to Euromin. He was given no details of the job. Grant’s “training” consisted of “Put your kit in the mess room, and go to the ship”. Sean Currey suggested that Simon, rather than Jodie, should go into the hold, because Jodie didn’t seem to be concentrating so he thought it was safer to have Simon with him.

ST Why wasn’t the agency prosecuted?

AJ I asked Jenny Bacon and she said she thought the agency was negligent, but the HSE can’t apply higher standards than the regulatory body. The DTI seem to think that a chat on the phone is making sure the job is suitable and safe. The agency can send a worker to a very hazardous place without infringing DTI regulations. Why doesn’t the HSE prosecute? In construction, docks, mines, quarries, and heavy manufacturing, “the courts decide what is reasonably practicable”. Must we send every case through the courts? It is hopelessly complicated. The DTI has said that MHSWR 1999 covers all employees. There is no way you can do a proper risk assessment over the phone. Personnel Selection had been supplying workers to Euromin for 4 months, and had never visited the premises. You can’t do a risk assessment properly without a visit.

ST Have there been any agencies prosecuted under H&S law?

BC I don’t know. The DTI is consulting at the moment about regulations.

AJ I’ve seen it. It’s all about money, and nothing about safety.

BC There should be more explicit duties on agencies. I’ll check on that. Your campaign has had some effect here. The regulations state that the agency must obtain from the hirer details of “all known risks”.

AJ What happens when the hirers don’t know or they don’t want to know? Agency workers face a double hazard of being sent to premises where no risk assessment has been done; the agency has failed to do a risk assessment yet is not contravening DTI regulations because there were no risks known to the hirer.

BC I agree, there is a gap. The worker – is he/she the employee of the hirer or the agency? We need a win track approach. The DTI needs to put tighter duties on agencies about who has duties under HSWA 1974.

AJ Agencies are doing absolutely nothing to protect their employees. In court it was established that Simon was not a Euromin employee but was an employee of Personnel Selection. The Cullen inquiry pointed out that HSE failed to enforce the law sufficiently rigorously. Cullen also pointed out the problem of using a chain of contractors, subcontractors and agency workers so that teamwork, training and supervision was not as it should be. Recent research has shown that on some construction sites there are as many as 6 layers of subcontractors; when is HSE going to realise that the findings of the Cullen report are not simply relevant to the rail industry? We will not have accountability unless the agency is made accountable.

ST The DTI deals with dotting the I’s; the HSE deals with deaths, injuries etc?

AJ There is a constant problem with railway maintenance, construction sites and docks using agency workers – those in the most hazardous circumstances have the least protection. One of the largest employers in the country is Manpower; there are an enormous number of workers without adequate protection.

BC What does the DTI do? What do we do? We are about to consult on agency regulations and produce guidance.

AJ We need an ACOP; guidance isn’t good enough.

BC We think guidance is needed. We want to avoid putting all duties on the agency and none on the hirer.

AJ Agreed, the hirer would still have duties but I was told no employer is exempt from MHSWR 1999 and you can’t do risk assessments over the phone. If a site is potentially hazardous it must be visited. If Personnel Selection had visited Euromin they would have seen the gates wide open and no control over who entered – this contravenes HSWA section 3. Euromin is close to a residential area; children and other residents are at risk from this lack of security. They would have seen heavy plant being used and lorries manoeuvring with no banksman and no supervision or coordination of operations to ensure workers on the ground were not injured. If they were considering sending workers to unload ships, they would also have witnessed the horrendously unsafe method of using the excavator. Having witnessed this if they had still sent casuals to work at Euromin they would have been guilty of gross recklessness or negligence, but to fail to visit such a site before supplying workers is still grossly negligent.

ST Has HSE ever prosecuted an agency?

BC There have been 2 prosecutions – one in the construction industry and one over child labour.

AJ I spoke to the managing director of Personnel Selection on 24th April. He said, “We don’t have to do site visits to comply with MHSWR 1999. If you (HSC) insist that they must do site visits it would make agencies more accountable, the workers would be safer and it would stop companies relying on casuals rather than employing permanent staff to avoid the problem of paying sick and holiday pay and the requirement to give notice of terminating work. Some companies use agency workers continuously for 2-3 years but there are virtually no employment rights for agency workers.

BC More regulations may not be the answer to the problem. I have met with a gang master in East Anglia and the problem is that whatever regulations you have you need enforcement. We have information on risks to agency workers; I can let you have the figures. We looked at who was most at risk according to age, length of tenure etc. Workers in the first 6 months in a job received double the injuries of those who had been in the job for more than 6 months. I’ll ask HSE what extra steps can be taken to overcome this. The figures cause me concern. Risks to casuals are often higher than to permanent workers because by definition they are new to the site and constantly move on so that they are always in the group that has less than 6 months tenure with the highest injury rate. I have seen some construction sites without layers of subcontractors.

AJ There are also good agencies e.g. one of our local agencies which supplies agency workers to cover holiday leave at the chocolate factory visits the premises 2-3 times per week. They can inform the worker who is the charge hand, exactly what the job entails etc. Simon was used to this agency, when he went to Personnel Selection he would have assumed that they also knew what sort of job they were sending him to, that they had similar standards.

BC We don’t control this – it’s the DTI…

PG Some duties are there. The DTI will enforce from a different angle. How do we make it stick? Agencies need to do a risk assessment (as well as the employer) – they must communicate. Our regulations already state this implicitly.

AJ Your regulations are implicit – they need to be explicit.

PG We have issued guidance. The representative bodies for agencies now recognise the agencies responsibilities.

AJ Must all agencies belong to the representative bodies?

PG I doubt it.

AJ There is a problem with guidance – those who need it most don’t heed it. It is directly comparable with drink driving. For years the dangers were known and we had high level guidance campaigns with posters and TV advertisements but it was not until the breathalyser was introduced, along with legal maximum blood alcohol limits and disqualification from driving of those found guilty that the deaths due to drink driving were reduced. We need 1) Legal requirements 2) Proper enforcement 3) Adequate penalties. For years we have had guidance and nothing has improved. You need to be explicit.

ST I see the point of guidance, but the danger is, if you head it “Guidance” – the people who bin it are the ones you want to get at. They will ignore legal duties.

BC Influenced by your Campaign we’ve commissioned research into agencies. We found a lot of confusion even in well intentioned agencies. We need clarification.

ST Can we be consulted?

BC Yes. I’ve asked HSE for ways to make meaningful consultation, not just the standard circular. We intend holding a seminar and invite you to represent less conventional views not just those of reputable employers.

PG We thought we would invite representatives from the NUS.

BC When I was on the Low Pay Commission we did project research among university students. Regarding risk assessments – I’ll check with the DTI.

ST Could you not arrange a high profile prosecution of an employment agency – you’ve only done 2?

PG We need a joined up message from the DTI and HSE.

AJ You might have a better working relationship with the DTI now that you come under Work and Pensions.

BC There are still a few weeks for consultation on DTI regulations.

AJ I understand a passport scheme has been introduced for rail maintenance workers along with a database of trained workers holding such a passport. Can we have this type of scheme extended to cover ALL casual/agency workers on docks, construction sites, quarries and road maintenance gangs?

BC That scheme has been introduced by Railtrack it is not a Government initiated scheme. With regard to Port Safety, there is a new body for training – Port Skills and Safety brings the Port Safety organisation and the training body together. They are launching initiatives to improve safety in ports generally. At a conference a year ago we got employers together and discussed our concerns.

AJ There are still problems because not everyone is a member of the approved organisations. Shoreham Port Authority was visited by Chris Barringer (H&S inspector) and her line manager only the day before Simon was killed for a full safety audit. Euromin is independent and so was not visited. Unlike the rest of the port it is situated outside the lock gates and so is exposed to the full effects of the tide; it is in the most dangerous position but because it is not a part of Shoreham Port Authority it was not inspected. What can you do about the independent operators to bring them in line?

BC I believe Euromin have now joined the initiative. There should be pressure from reputable employers on independents. Reputation is important. Ports feel tarnished by Euromin.

AJ Euromin has no security consequently anyone can stroll in from off the street. When there was a serious fire there, the alarm was raised by the security firm looking after the rest of the port. All of the other businesses in Shoreham port contribute to pay for the security company. Euromin alone does not cooperate.

BC I am keen to use peer group pressure in the ports’ industry. Reputable operators set standards that can drive the rest of the industry.

AJ It would help if you extended the passport scheme to ports; the work there tends to be very specialised.

BC The railways have developed their own scheme; I cannot answer for this.

PG The major safety organisations have come up with various passport schemes.

BC It should be possible with swipe card technology. It is not statutory in railways but Cullen did recommend something like this.

AJ It was Alistair Darling who announced the introduction of the Sentinel database.

BC Railtrack developed this; we’d like to roll out passport schemes more widely they can be useful but compliance must come from the industry.

AJ I agree; compliance must come from the industry but unless you use enforcement as soon as there is a complaint the cowboys will keep operating. Ruth Lea of the Institute of Directors has stated publicly, “We don’t need people like that. If they are so awful fine them so much that they go out of business.” We need serious fines for Health and Safety breaches to act as a deterrent.

BC We’ve set out a policy for enforcing agencies (HSE and Local Authorities). We must convince judges about sentencing. HSE is a prosecution body not a sentencing body.

ST Does HSE actually stand up in court and say, “they make £X millions”

JT We do. When there is difficulty considering sentencing we serve on the defence a summary of aggravating features. The defence says which features they agree and which they dispute and also put forward any mitigating features.

ST Do you concentrate on the facts of the case not profit?

JT The defendant gives their view.

ST Do you check with Companies House?

AJ At the English Brothers trial they dealt with turnover. The defendants called their accountant to give evidence who proceeded to blind the judge with numbers. They ended up getting away with a very small fine. Accountants are paid to minimise the appearance of profits to enable the company to pay less tax.

ST The HSE needs accountants.

AJ You need some forensic accountancy for the prosecution. Why not demand a minimum fine of 5% – 10% of annual turnover?

BC The fines are too low. We would like the Government to legislate for an increase to maximum fines in the lower courts and we would like imprisonment to be available for Health and Safety Offences. In the Crown Courts the judges decide. Even if there were higher fines would that be enough? We’re looking at how a firm’s behaviour might be affected – loss of contracts; contract compliance. Clients should take account of company’s Health and Safety record.

AJ A health and safety record may not give the true picture. Euromin had a good safety record because they didn’t bother reporting accidents and near misses. The HSE doesn’t take adequate enforcement action.If I phoned the police to report a neighbour driving recklessly and the police responded by visiting him at home when his car was in the garage and didn’t even bother to check his driving licence but simply accepted his assurances that he was in fact driving carefully, do you think it would be an adequate investigation? When an anonymous complaint was made to the HSE about crane safety at Euromin, excessive working hours and failure to use a trained banksman, HSE visited to inspect the complaint when there was no work going on except in the offices. How can you check whether or not a banksman is being used if there is no work going on? How can you check if the crane is being used safely if it is not in use? It is simply not satisfactory. If this was a child abuse case and failure to address complaints had eventually led to a child’s death there would be a public inquiry. I know the ratio of inspectors to premises does not allow proper inspection and follow up. Such an inquiry would answer a lot of your questions. It would shake the government into admitting that the HSE is the poor relation and needs massive funding. You must do more than simply ask ministers nicely.

BC I share your concerns over funding; I have made the point to ministers. An increase in inspectors still wouldn’t cover every work place. It will only reduce fatal injuries (not “accidents”). We need the HSC/HSE and employers to work together. With regard to a public inquiry, I don’t think that would help. It would divert resources. I have the power to call an inquiry under HSWA section 14 (2)a with the approval of the Secretary of State but I am not convinced that he’d agree. If you are saying that a public inquiry focussing on Simon’s and the Mungovan case could be used to shine the spotlight of public opinion on the problems of casualisation, I think I’d agree with you.

AJ There is constantly the stick of withdrawal of benefit placed on workseekers but there is no carrot of protection. Simon had had hassle from the Jobcentre. The DTI says they are misinterpreting the regulations and have said they will send out a reminder. But they have not sent me a copy of it or said when it is to be sent out to Jobcentres so I have no guarantee that it exists. Effectively their attitude has been, “starve or take a hazardous job.” New workers are always more at risk than established workers but agencies fail to do risk assessments. Both the DTI and the HSE are involved. Many people need to be drawn together to be effective. Meanwhile the CBI is lobbying hard in Europe to prevent agency workers here receiving the same protection as their European counterparts.
ST When answering to the select committee Jenny Bacon was asked if HSE had enough money. She answered, “it isn’t a matter of how much …. It’s what you do with it.” If the HSE is truly independent, why don’t you ask for more money?

BC We do ask the Treasury.

ST We are told the HSE protects us; the public doesn’t know how seriously underfunded the HSE is.

AJ When I raised questions with Jenny Bacon in 1998 about HSE funding I was told, “We are adequately funded for what we do”. Why not say publicly that you’re short of funds? A little honesty would be an enormous help.

ST If you’re independent why don’t you shout?

BC We have to distinguish between the need for statutory provision and what we’d like to do if we had more. We’ve prioritised certain areas; we try to identify where workers are most at risk. To recap: We will look at the issue of the threshold of 5 workers before a written risk assessment is required. HSC would not support the removal of the threshold; the burden put on small companies would not be justified and it couldn’t be properly enforced.

AJ If the risk assessment is not written there is no evidence that the company has even thought about it.

PG HSE guidance says that if the risk assessment is complicated it would be better to write it down.

BC If we made recording risk assessments a duty we wouldn’t get anything worthwhile. The bigger issue is the problem of permanent/ casual workers. I promised to send you more information regarding the injury rates of casual workers. I am asking the HSE what further steps can be taken. We are checking on where the DTI are on revising regulations. The HSE is cooperating with the DTI to share information. We’re working on guidance concerning agency workers. Consultation gives a “real world perspective”. I’m sorry I can’t help you on a public inquiry. One on agency workers is beyond my competence.

ST Why?

BC Under section 14(2)a, it goes beyond the purview of the HSWA.

AJ You could back our call for it.

ST I have to disagree with you about section 14(2)a – it is very wide.

BC I would not recommend a public inquiry.

AJ Can we have written reasons?

BC It would divert resources from other things.

AJ We really need to see the arguments in writing to see if they are valid; we also need to see the reasons for rejecting licensing.

BC On licensing, we’ve been looking at licence regimes e.g. nuclear, asbestos. Also where the safety case indicates that it is needed: railways, offshore industries, chemicals….

AJ Have you considered the real costs? Simply telling me that the scheme would be too expensive for employers is not good enough. What about the costs to injured victims, bereaved families, the emergency services, the NHS, the Benefits Agency etc? Multiply the costs for each case by the 300+ deaths and 30,000 major injuries per year and the cost to the companies becomes insignificant. Once more the licence fees paid by industry could fund extra HSE inspectors to enforce the system.

BC We can set out the pros and cons. If we thought the benefits would outweigh the costs…..

AJ Hazardous industries need licensing. It is nonsense that the machinery needs checking for safety but not the way it is to be used. The safest car in the world is one that is still in the showroom; it is when the idiot behind the wheel chooses to drive it inappropriately that we get problems. The Home Office is excluding victims of H&S offences from the proposed victims’ charter. Can you redress the balance by having representation on the HSC from people bereaved or injured as a result of H&S crime? The proposals lead to the ludicrous situation that if you are killed or injured on the road, you have a voice but not if you are killed or injured on the railways.

BC I will follow this up with the Home Office. I don’t make appointments to the HSC – ministers do. I would dispute the fact that bereaved relatives do not have a voice. I see people all the time e.g. from Southall.

AJ I am not putting myself forward but there are many well informed, articulate people who could contribute to the HSC. Can you check on how the level of risk is assessed for companies? Euromin were not performing any of their key activities; there was no work going on on the quay, no ships were being discharged/loaded, no lorries were being loaded or unloaded yet they were classified as medium risk. As the only place where any work was going on was the offices one has to conclude that the management of safety in the offices is really bad.

BC I will take advice from Field Operations Division.

AJ Speaking of which, you don’t have enough inspectors. I asked you for the total number of inspectors active in the field and the number of premises for which they were responsible. I now have this information from another source within the HSE.

BC We have 100 to 150 inspectors in construction.

AJ The figures show there are 670 premises for each inspector. Even if they could inspect 5 days per week they could only make a visit once every 2 years. Because they need travelling time and have to spend at least 2 days per week in the office doing admin and follow up and also have to spend time preparing court cases and attending court it is unlikely they can make a visit more than once every 5 years. How often do they carry out inspections?

You need to be honest and say this is what we have got and this is what we need. When Gordon Brown’s baby daughter died he made massive extra funding available to the NHS yet she had received every care. Why should he not make funds available so that other people do not lose their children because of the negligence of employers?

BC We don’t simply need more inspectors.

AJ True, you need more admin staff and more people in the legal department as well to prepare cases for court. Thank you for the time you have given us; we look forward to receiving the written information you have promised to send.