Inside Track

The Supreme Court has finally ruled on the long-running and controversial issue of hearing loss due to industrial noise exposure in the 1980s.  In a majority decision it upheld the employers' appeal against a judgement that would have granted compensation against employers, even though they were following the official Code of Practice at the time.  This has important implications for companies operating in 1970s and 1980s.

In Baker v Quantum Clothing Group and others, an employee sued her employer for hearing loss due to exposure to noise levels between 85 and 90 decibels (Db) prior to 1990.  In 2010 the Appeal Court had granted compensation.  This was surprising because up until 1990 when the Noise At Work Regulations came into force, the Industrial Health Advisory Committee's Code of Practice stated that exposure to noise above 90Db should be prevented.  The Appeal Court essentially said that companies should have ignored official guidance and carried out their own investigations to establish a safe level.

The Supreme Court, which replaced the House of Lords as the highest court in the land in 2009, heard the employers' appeal last autumn.  Earlier this month they delivered their decision and held by a majority of two to one that the employers in this case should not have been expected to second-guess the official Code of Practice, by looking at draft European Directives and other sources.  The full judgement can be viewed here.

Noise-induced hearing loss is a serious condition that can be very debilitating in later life.  Common sense has prevailed for some past exposures in this instance.  However, it is important that employers who carry out noisy processes assess and manage the risks.  Reducing noise at source and providing hearing protection, training and regular audiometry (hearing tests) can prevent harm as well as controlling liabilities in both criminal and civil law.  EEF members can find out more about managing noise at work here.

http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=18208&c=1&eclipse_action=getsession

In March Employment Minister, Chris Grayling, announced an independent review of health and safety to be chaired by Professor Ragnar Lofstedt.  Today Professor Lofstedt announced his terms of reference, making clear that regulations and compensation are very much in scope, but the Health and Safety at Work Act 1974 is not.

There had been criticism that Professor Lofstedt was being allowed to write his own terms, notably from Lord McKenzie, former Minister with responsibility for health and safety.  However, as with all such reviews it's likely that the terms of reference were the result of discussion and agreement between the Minister commissioning the review and its leader.

The review will seek to determine:

• the scope for consolidating, simplifying or abolishing regulations;
• whether EU Directives have been 'gold-plated' in the UK with extra requirents;
• what can be learnt from other countries;
• whether there is a clear link between regulation and positive outcomes;
• whether there is evidence of inappropriate litigation and compensation arising from health and safety legislation; and
• whether legislative changes are needed to clarify the position of employers where employees act irresponsibly

The terms of reference also make clear that regulations and Approved Codes of Practice enforced by HSE and local authorities are in scope, but the Health and Safety at Work Act and other primary legislation is not and neither is legislation enforced by others such as food safety.

We've already been in touch with Professor Lofstedt and will be contributing in a constructive and balanced manner.  There is much that is good about the current health and safety regime, but also aspects that can, and should, be improved.

There are two particular areas that are undermining the good work that HSE and Ministers have been doing for some time to simplify compliance, focussing attention on practical actions to manage significant risks. 

The first is the European Commission which continues to see more legislation as the answer to all ills, without stopping to look at whether existing requirements are actually being implemented effectively.  This is not an easy problem to remedy, the UK government cannot resolve it alone.  But it is important that the review shines a light on the issue and provides some independent evidence that can help a growing alliance of member states and MEPs change the Commission's direction.

The second is the effect of the civil compensation system in driving paperwork requirements.  For all that HSE does to reduce paperwork requirements, it will come to nothing if compensation claims are still settled essentially on the basis of what paperwork was produced, rather than on what practical action was taken to actually manage the risk.  As I mentioned in a previous blog there is an urgent need to clarify the role of paperwork.

The review is a positve move and Professor Lofstedt is emanently qualified to lead it.  This looks to be a good opportunity to address the real issues on the basis of evidence, rather than the knee-jerk response based on supposition that too often dogs health and safety. 

 Today, Lord Chancellor, Ken Clarke, launched a consultation on major reform of the compensation system.  Stories of a ‘compensation culture spiraling out of control’ are often over-played.  But the compensation system does have some serious flaws and is responsible for many of the problems in health and safety that are wrongly attributed to regulations.

A good compensation system should ensure that people who deserve compensation for harm caused by the negligence of another, get it quickly and this is delivered in a cost-effective manner.  Decisions should be made on the basis of how well risks were controlled in practice, not the quantity of paperwork involved.  Unfortunately that is all too rare.

The consultation launched today proposes the introduction of a fast-track system for small compensation claims as well as imposing a limit on legal fees that may be paid.  At present small claims come with big legal fees – a £5,000 settlement will frequently involve £10,000 costs and take manymonths, if not years.  And much of that cost and time is incurred before the employer is even notified of the claim. 

In 2005-6 EEF campaigned alongside the Association of British Insurers for the introduction of a fast-track system for employers’ liability claims that would result in the great majority of cases being settled quickly through mediation.  This would deter speculative claims for compensation by taking the profitability out of the system, as well as ensuring that those who deserve recompense get it far more quickly.  We came close to succeeding in the campaign, but in the end the system was restricted to small motor claims. 

We need to work through the detail, but it looks like the governments proposals would introduce the kind of fast track system for which we campaigned.  It builds on an earlier consultation which proposed banning the payment of referral fees where a third party is paid (typically several hundred pounds) for referring a claim to a solicitor. 

The proposals so far are very welcome and appear to go a very long way to meeting that test of delivering compensation promptly and in a cost-effective manner.  But what isn’t being addressed at present is the over-reliance on paperwork that I mentioned.  On its own paperwork never saved a single life – it is practical action that makes the difference. 

Whilst the Health and Safety Executive continues good work to reduce the bureaucracy involved in complying with health and safety regulations, defending compensation claims continues to be very much about producing paperwork rather than about identifying the action that was actually taken.  Much of this stems back to what are know as ‘the Woolf Lists’ of documents that may be relevant to a claim.  Instead of being a useful aide-memoire these seem to have become requirements without which a claim cannot be defended. 

The Government deserves credit for the action it is already taking.  If it will turn its attention to the Woolf lists as well we may hear rather less about a ‘compensation culture’.

This morning Employment Minister, Chris Grayling, made a major announcement on the Government's approach to health and safety. There will be an independent review of all health and safety legislation, the number of inspections will be cut by a third by focussing more tightly on high-risk sectors and those who manage risks poorly, and companies found to be putting people at risk will be charged for the cost of their inspection and follow-up action. 

EEF has welcomed the announcement that builds upon the 'Common Sense, Common Safety' report produced by Lord Young last autumn. 

Independent Review of Legislation

The Minister confirmed that Professor Ragnar Lofstedt, of Kings College Centre for Risk Management, has been appointed to lead an independent review looking at health and safety legislation with a particular remit to tackle duplication and unnecessary legislation.  He is due to report in the Autumn. 

This is a welcome step to review a whole regulatory area, rather than piecemeal changes to individual regulations.  It provides the opportunity to identify duplications, inconsistencies and inefficiencies produced by layers of different regulations and is the kind of approach we are keen to see taken in other regulatory areas, including climate and environment.  

Unlike the Young review, European legislation is very definately within scope.  In answer to my question on this, Chris Grayling recognised that EU legislation is far too often disproportionate.   He went on to indicate that the report will be made to both the UK government and European Commission and that he will be using it to inform negotiations.  This is a particularly welcome development.

Modernising the inspection regime. 

The Health and Safety Executive and Local Authorities will more tightly focus their proactive inspection – aiming at high hazard and high risk sectors as well as companies with poor records.  This will result in 33% (11,000) fewer inspections by HSE.  The Local Government Association today wrote to local authorities calling for a similar approach.  However, HSE's enforcement policy will remain the same as will its activity in investigating complaints and injury reports.      

A system - sometimes referred to as 'fee for fault' - will be introduced to charge companies for inspection and associated work if they are found to have significant failings (but not mere technical breaches).  In principle it certainly makes sense that if someone is to pay, it should be the companies who are taking an unfair short-term advantage by putting employees at risk.  Of course getting that targetting to work effectively in practice presents some challenges.  We are already engaged with HSE on this and are expecting a consultation in the summer, with implementation of a system not expect until spring 2012 at the earliest.  

Putting all of this together, good employers in most manufacturing sub-sectors can expect to see less of the regulator, but a company who does badly at an inspection can expect to be charged for the privilege and will receive a poor rating from the regulator, meaning they will be on the list for future visits.  

 Tackling the health and safety 'cowboys'

The Occupational Safety and Health Consultants' Register (OSCHR) goes live today, it has been created by a partnership between 5 professional organisations and the Health and Safety Executive.  Businesses can now search an online directory of consultants who have degree level qualifications, at least 2 years experience, complete continual professional development and are subject to enforceable codes of conduct.  1600 consultants have been accepted on the register, including over 20 of EEF's own health and safety advisers who provide consultancy support and training to businesses. 

Whilst not a legal requirement, registration is a strong indication of competence.  However, the true test will be whether the professional organisations, who are responsible for policing the register, are prepared to be robust in tackling those who oversell their services or are excessively risk-averse.  Without this, the register will bring no additional benefits.

Simplification of Compliance

Work will continue to help lower-risk small businesses comply with a minimum of fuss.  Having already issued simplified guidance and risk assessment tools, HSE today launched a new microsite called 'Health and Safety Made Simple - the basics for your business.'  This is something EEF has had input to through HSE's Small Business Trade Association Forum.

As ever, the proof of the pudding will be in the eating, but overall it was a welcome announcement that recognised the importance of effectively managing substantive risks, whilst avoiding disproportionate responses and unnecessary burdens.  Or, as the Minister put it, 'tackling the rogue employers, whilst removing red tape from the vast majority of employers who play by the rules'. 

We have just launched our latest annual member survey on health and safety.  This year we focussed on just a few key issues of current concern.  As ever, one of these was EU legislation.

 At a time when the UK government is seeking to refocus action on health and safety, to constrain unnecessary costs and to avoid legislation, the European Commission (EC) seems to still be moving in the opposite direction.  

 Our survey shows opposition to the current new EC proposals on musculoskeletal disorders (MSDs) and ionising radiations. Improvements in health and safety are more likely to come from consistent implementation of existing legislation across the EU than from further directives.

 The EC is working on a ‘simplification’ in this area, merging the Display Screen Equipment Directive and the Manual Handling Directive into a new MSDs Directive. Early working drafts proposed that the new directive should contain all the requirements of the existing legislation and add new ones. In particular, there is a proposal that psychosocial factors, such as stress and work pressure, be considered in risk assessments.

 Our survey found that almost three quarters of companies disagreed that consideration of psychosocial disorders should be a legal requirement.  As the graph below shows, opposition was strongest amongst smaller businesses.   

Considering psychosocial factors can be useful in managing the risks of MSDs, and we are happy to promote this as a best practice approach.  However assessment of them is by its nature very subjective and so not appropriate for regulation.  Read our policy brief on MSDs here.

There was an even stronger rejection of Commission proposals on work with ionising radiations.  The Commission is ‘simplifying’ five directives on the health and safety, environmental and medical aspects of work with ionising radiations into one new directive. However, again it proposes that all of the original requirements be maintained and that they be supplemented by new measures. This would impact on our domestic Ionising Radiations Regulations 1999.

 We asked those who work with ionising radiations whether the requirements of the Ionising radiation regulations should be made more stringent, less stringent or remain the same. As the chart below shows, there was very strong agreement that the current regulations are appropriate. 

This is unusually strong support for a piece of legislation.   It represents a definate vote of confidence in a well-considered and necessary piece of legislation.

 We and our European sister organisation, CEEMET, will be using these results from the survey to argue the case for a fresh approach to EU legislation that focuses on consistent application of existing legislation, instead of the imposition of new requirements.  Read our policy brief on EU health and safety legislation here.

I sometimes feel like the ubiquitous 'whinning Brit' arguing against the latest European Commission proposal for a health and safety directive.  Naturally business gets concerned about the effect of new regulation - particularly when we are still at a relatively fragile stage of recovery from a deep recession.  However there is a more fundamental issue at stake:  an emphasis on continued regulation, rather than improving consistency of compliance with existing requirements, will not reduce exposure to risk and may well actually increase it.  Here's the reasoning.

Early EU health and safety directives were well-judged and set the right approach.  As well as establishing a clear set of rights and responsibilities, The structure established by, for example the Health and Safety Framework Directive 1989, requires that risks presented by a workplace are identified, assessed and acted upon together in a holistic fashion.  The European Commission and Parliament deserve credit for establishing this.  That may not be a fashionable view, but I strongly believe it is true.

A holistic approach is essential; risks present in a workplace be assessed, prioritised and acted upon in a joined-up manner.  This allows the employer to identify synergies or tensions between the risks or indeed between the proposed control measures.  If risks are assessed in isolation a measure to reduce one may inadvertently increase another.  A holistic approach is also essential in prioritising actions appropriately so that the highest risks receive attention first.  

However, in recent years we have seen the adoption of a number of hazard-specific directives.  Initially these focussed upon hazards that contributed very significantly to workplace ill health and injury, for example abestos and moving machinery safety.  Recently they have focussed on risks that make very small contributions to the overall statistics, such as optical radiation and electromagnetic fields.

Directives are based around the same essential structure, but each tends to set out its own, slightly different criteria and process for risk assessment and control.  That is a problem for two reasons.  Firstly it tends to fragment the holistic approach to risk so that synergies and tensions are missed and prioritisation is poor.  Secondly it results in unnecessary time and money being spent upon the process of assessment, when this could be better spent upon effective controls; it’s a well-used adage, but on it’s own paperwork never saved a single life.  

So if new legislation is not the answer to improving management of risk, what is?  I believe that the European Parliament and Commission need to direct their attention to ensuring that the original structure is effective in practice.  That means that implementation – including enforcement of existing requirements needs to be effective and consistent across all member states.  Enforcement activity should be risk-based, directing activity to higher risk sectors and those who are managing risks and thus putting workers at serious risk.

There also needs to be much better promotion of, and practical support for, duty holders.  That is not just down to the European Commission or even member governments - employers groups, trade unions and others have a key role to play.  Many are also contributing, EEF for example last year published detailed guidance on metalworking fluids and a tool for board monitoring of meaningful objectives.  And we will very shortly be publishing case-study guidance on solutions to common musculoskeletal disorders.  

There is more we can do and we are keen to play our part – particularly if we are not occupied fighting well-intentioned but poorly thought-through legislation that will do nothing to improve protection in practice.

The long saga of EU legislation on Electromagnetic Fields continues.  Wtih a little over 12 months until the postponement of implementation for the orginal faulty directive expires, things - in European law terms - are starting to get tight. 

it's now pretty clear that we are going to end up with a directive in some form or another and, depending on the limit values that are set and action required, it could affect manufacturers carrying out processes such as arc and resistance welding, electroplating, radiofrequency welding and induction heating.

After Commissioner Andor told the parliament that the they would have a formal proposal by Christmas, a sense of real urgency crept in.  Over the past few weeks we have been working with partners to ensure that the Commission avoids rushing through an incomplete directive.  Though well-intentioned it would require business organisations, governments and unions to sign-up to a proposal with key parts missing and that could result in another faulty directive that imposes unreasonable burdens on business for processes that pose no genuine risk to health.

I'm glad to say that our combined work was successful and the Commission has promised to produce a complete directive for the EMF working party (made up of representatives of governments, employers and employees) to consider early in the new year.  Whilst it is extremely unlikely that we will get rid of a directive on EMF altogether, there is still a lot to play for, with the potential to greatly limit the impact on manufacturing industry.  We will continue to keep you posted.

I'm sure you won't have missed the news that Lord Young has stepped down from his position as adviser to David Cameron.  We met with him at No.10 just 2 days before he made 'those' remarks and had a very constructive discussion about the issues that could help or hinder in making a change to health, safety and compensation.   He indicated that he would see through implementation of his report and where necessary build upon it.  He was of course also due to carry out a review of the climate for SME enterprise.  So what happens now?

Well, in terms of implementing the health and safety report, very little has changed.  In response to the health and safety recommendations staff at the Department of Work and Pensions, supported by HSE, have responsibity for carrying them through.  Where that requires legislative change, they will first develop options, assess their impact and carry out a consultation exercise.  Staff at the Ministry of Justice have the similar responsibility for changes to the compensation system.  The fact that I'm already getting contacted by officials about specific actions indicates that things are moving fast.  There is a strong drive to see through the actions without undue delay.

So whilst, as ever, the odd proposal may drop by the wayside during the development process, we can expect implementation to go ahead.  What has changed is the potential for Lord Young to take a second look at the issues once implementation is advanced and develop further proposals.  His parting shot to David Cameron at the breakfast meeting that launched his report was 'that the report represented 'just the first chapter'.  It's always possible that someone else may be brought in to do that work, but I think the likelihood is that we already have the key actions.  As ever we will keep you updated.

The European Chemicals Agency (ECHA) is expecting 10,000 substance registrations to be submitted between now and 30 November 2010 deadline.  This is a massive undertaking when put into perspective that a little over 10,000 registration dossiers have been submitted since 2008. 

To further intensify this administrative task ECHA has “strongly advised” REACH lead registrants to submit their substance dossiers at least two weeks before the deadline in order to leave enough time for the other substance registrants to submit their dossiers.  If these registrants decide at this late stage to heed ECHA's advice then it should expect, by its own estimation, roughly 2,000 lead registrant dossiers in the next week.

To aid the administrative process ECHA has said that its REACH-IT system will now be open during weekends from 19 November until the first registration deadline on 30 November 2010.  This decision offers some degree of scope to registrants; however, even for the most optimistic observer there remains a frantic and fraught three weeks yet to go.

To add to the complexity and confusion of the remaining registration period it appears that an increasing number of registrants are failing the business rules checks for submission.  This lack of familiarity with the registration submission process adds to the increasing burden and nervousness of ECHA and registrants.

If you do have registration obligations for this first REACH deadline then I would encourage you to pull out all the stops ahead of the deadline.  ECHA has announced that it will shut down REACH-IT on 1 December to upgrade the system.  And what really will happen past this date is anyone’s guess.

Christopher Chope MP has presented 12 Private Member's Bills to parliament, addressing key points from the Young Review of health, safety and compensation.  Now a backbench Conservative MP, Christopher Chope was a member of the Health and Safety Commission (now the HSE Board) between 1992 and 1997.

Amongst them is a Bill that would introduce statutory licensing of health and safety consultants, despite the fact that Lord Young indicated that a revised voluntary system should be given the chance to work.  I am very concerned that a statutory qualifications system would introduce excessive costs, but no additional benefit for lower risk premises, including some manufacturers. 

Private Member's Bills generally do not make it past their second reading.  However, government can choose to adopt particular bills and support the individual member in their course through both houses of parliament. 

The Bills are:

• Reporting of Accidents, Diseases and Dangerous Occurences Regulation Bill
• Local Government Ombudsman (Amendment) Bill
• Low Hazard Workplaces (Risk Assessment Exemption) Bill
• Self Employment (Risk Assessment Exemption) Bill
• Health and Safety Consultants (Qualifications) Bill
• Activity Centres (Young Persons' Safety) (Amendment) Bill
• Health and Safety at Work (Amendment) Bill
• Volunteering Bill
• Road Traffic Accident (Personal Injury) (Amendment) Bill
• National Health Service Redress (Amendment) Bill
• Compensation (Limitation) Bill
• Criminal Records (Public Access) Bill

At the first reading stage, no more than their title is required so there is no further detail.  We will be monitoring closely, to lend support where appropriate, but to spell out the problems that would arise from statutory licensing of consulants.