Lord Young was asked to carry out a survey of health and safety in response in part to the increasing publicity given to “health and safety gone mad” stories such as the restaurant which banned toothpicks and the contestants in a pancake race who were asked to walk and not run following rainfall. It is not only the media who come in for criticism in the report. Other targets include claims management companies, personal injury lawyers, health and safety consultants, insurance companies, local authorities and the European Commission.
The report puts forward a number of recommendations to improve the perception of health and safety to try to ensure it is taken seriously by both employers and the general public while attempting to ease the burden of health and safety requirements on small and low risk businesses.
While concluding that changes need to be made, Lord Young recognises that the Health and Safety at Work etc Act 1974 has resulted in the UK having the lowest number of non-fatal accidents and the second lowest number of fatal accidents in Europe. As such, he suggests that the problems which have arisen are linked more to the interpretation of health and safety legislation than its content.
Some key focal points of the report are:
- The effect of the “compensation culture”, deeming this to “be at the heart of the problems” facing health and safety today
- Making health and safety requirements less cumbersome for medium and small businesses and low hazard workplaces
- Improving the standards of health and safety consultancies
The report makes a number of recommendations seeking to improve the current system and improve the standing of health and safety in the eyes of the public. Many of these are raised below. The report also makes various recommendations relating to local authorities, education, food safety, adventure training, police and fire services. These recommendations are not discussed in this paper.
Small businesses and low hazard workplaces
Lord Young was particularly concerned that low risk workplaces such as shops and offices should not be required to complete far reaching risk assessments or to consider fanciful risks. His report includes the following recommendations specifically for small businesses and low risk workplaces:
- Simplify the risk assessment procedure for low hazard workplaces - the report recommends the HSE should create simpler interactive risk assessments for such workplaces and make them available on its website
- The HSE should also create periodic checklists enabling those working in low risk environments to check and record compliance
- Exempt employers from risk assessments for those employees working from home in a low hazard environment
- Exempt self-employed people in low hazard businesses from risk assessments
It is clear that the report was produced in close cooperation with the HSE, who responded quickly to some of the recommendations. Indeed, the day the report came out the HSE published a new 20-minute online risk assessment for offices, with the promise of others to follow.
The recommendations do seek to remove an element of the uncertainty and administrative burden on smaller businesses and those involved in low risk activities. However, although the removal of the need for written risk assessments is suggested, in the limited occasions mentioned, it must be remembered that this would not exempt an employer from prosecution in the event of an incident.
Big business
Lord Young makes it clear in the report that in material ways he considers the current system effective and appropriate for high risk industries and big business.
The report criticises the impact of the Primary Authority Scheme, introduced in 2009, which enables a multi-site business with offices across the country to deal with one principal authority to agree the standards applied on all their premises. The aim of the scheme was to reduce inconsistencies, in enforcement and the like. However, particular problems include the failure of some local authorities to participate in an inspection plan drawn up by principal authority and business. The report suggests a consultation on implementing an improved system in early 2011.
Health and safety consultants
What Lord Young sees as under qualified and over zealous health and safety consultants come in for particularly trenchant criticism. He considers that such consultants often seek to reduce all risk, as opposed to applying the statutory test of what is reasonably practicable. Some might consider the attack on consultants, which reappears a number of times and stands out in the report, rather curious and unfair. For one thing, Lord Young’s criticisms could equally be levelled at a certain type of HSE inspector.
To halt the damaging effect of these consultants, he recommends that consultants should be accredited to a professional body and that a web based directory of accredited consultants should be created. The HSE have already announced that a voluntary register called the Occupational Safety Consultants Register will go live in January 2011. Joining criteria include chartered membership of IOSH or other specified safety bodies, and a commitment to providing proportionate advice.
Insurers
Just as he sees some consultants as overdoing the approach to risk, he criticises some insurance companies for requiring those businesses operating in low hazard environments to employ health and safety consultants to carry out assessments. The report states that where this is a requirement, only qualified consultants on the web-based directory should be employed for this task.
Personal injury claims
Lord Young reserves a good chunk of his criticism for the contribution no win no fee claims management companies and personal injury lawyers have made to the “climate of fear” in which he says businesses now operate their health and safety policies.
- To combat this he recommends among other things:
- The restriction of the operation of claims management companies, the paying of referral fees to them by personal injury lawyers and associated advertising
- Simplified claims procedures for certain types of injury claim
- The introduction of recommendations made in the earlier Jackson Report, which focused on and sought to reduce spiralling litigation costs
Police and fire services
Lord Young picks up on and supports recent joint work by the HSE and the emergency services aimed at trying to find a balance between the high risks involved in some operational duties and the safety of those involved.
He recommends that officers should receive reassurance, via guidance which he suggests should be produced by the HSE and the CPS, that they will not risk criminal investigation or prosecution “if they have put themselves at risk as a result of committing a heroic act”.
The recommendation remains silent on whether any such reassurance from the HSE and the CPS should apply when officers have put themselves and others at risk.
Legislation
No suggestions have been made to change the Health and Safety at Work etc Act 1974, as it is recognised that its fundamental framework remains relevant, appropriate and helpful. Lord Young accepts that the 1974 Act provides a “clear framework for the risk driven approach to health and safety”. He comments that the principles of the Act have been affected by the compliance driven approach which was compounded by EU legislation introduced in 1992, and that some problems facing health and safety today have not been caused by the legislation itself but by the interpretation of that legislation.
In light of the above, his recommendations in this area are as follows:
- HSE should produce clear separate guidance under the relevant Code of Practice focused on small and medium businesses engaged in lower risk activities
- The UK should work to ensure that health and safety rules introduced at EU level do not become over burdensome or disproportionate to low risk businesses
- The current raft of health and safety regulations should be consolidated into a single set of accessible regulations
The recommendation that all health and safety regulations should be consolidated into a single set of accessible regulations is an ambitious one. It may turn out to be impractical.
RIDDOR
The report suggests an extension of the absence limit for reporting injuries under RIDDOR from three days to seven days. Such an extension would bring reporting into line with current timings for the obtaining of a GP’s note and would be likely to reduce administration.
HSE response
The HSE has welcomed the report and its recommendations stating among other things that “Lord Young's report is an important milestone on the road to recovery for the reputation of real health and safety….Publication of the report is a tremendous opportunity to refocus health and safety on what it is really about - managing workplace risks. Getting this right is good for employers, employees and Britain as a whole”.
Bearing in mind the fact that the HSE will have cooperated closely with Lord Young in his production of the report, this is hardly surprising.
The HSE is one of the few bodies not singled out for criticism in the report.
Is all this common sense?
The Young Report has been approved in full by the Government.
The recommendations themselves are mainly focused on reducing the impact of what Lord Young and the Prime Minister refer to as the “compensation culture”. It is interesting that Lord Young refers to this culture in the report in terms of “perception”, “impression”, and “fear” rather than anything more concrete.
Some critics argue that the recommendations, while making an attempt to ease the burden on smaller, low risk businesses, are in the main focused on improving solely the perception of health and safety. There may be some strength in that argument.
Further, given the limited time Lord Young had to consider his proposals - he was provided with his remit in June 2010 - there are others who argue that he has not had time grasp the issues sufficiently.
Ultimately of course, the recommendations even if implemented would not result in sweeping changes to health and safety law or its implementation and enforcement. The recommendations would not affect the way in which the HSE make decisions to prosecute. Neither would they affect the approach of the court upon sentencing health and safety offences. But they may go some way towards addressing the perceived overzealous application of health and safety law in non-hazardous occupations.
Will the recommendations be implemented?
Lord Young makes a commitment in the report to stay on in his role until the recommendations are delivered, complaining that “all too frequently reports of this nature are left to gather dust on the shelves of Whitehall”. In fact, this commitment mirrored a key element of the report’s own Terms of Reference. The commitment, however, has been overtaken by his subsequent resignation, on 19 November 2010, after his “you’ve never had it so good” comments regarding the “so-called recession”.
The implementation of one or two of the report’s recommendations is already underway, but it is too soon to say whether and to what extent we will look back at some of the others and, to use Lord Young’s words, “wonder what all the fuss was about”.