The report by Professor Ragnar Löfstedt published on 28 November 2011 recommends no major changes to UK health and safety law. However there were a number of recommendations that are worth noting and which have accepted by the Government:
Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others
The Health and Safety Executive (HSE) will be required to take action to remove health and safety burdens on the self-employed in low risk occupations, whose activities present no risk to other people. Whilst the enforcers are extremely unlikely to visit self employed persons in low risk activities, it is often the fear of inspection and prosecution which causes concern. This recommendation should remove that concern. The timescale for achieving this is 2013. It will be interesting to see how this is done without creating over complicated exceptions.
Review of all Approved Codes of Practice (ACoPs)
The HSE will be required to review the 53 ACoPs to ensure they are easier to understand. Quite often, ACoPs are criticised for being over complicated or vague. The Government wants to see simplified language and examples of good practice. The initial review should take place by June 2012.
HSE to make sector specific consolidations
The review identifies a number of areas where health and safety legislation can be consolidated. Legislation that is out of date or repeated elsewhere will be reviewed and it is anticipated that the number of health and safety regulations can be reduced by more than 50% without reducing the protection offered to employees and the public. Legislation which offers no improvement to health and safety outcomes or where there is duplication will also be repealed. There will be a requirement for the HSE to consult on the proposed changes and a detailed timetable will be drawn up. This review should be completed by April 2015. Many of you, like me, will be happy to see the of such frivolous regulations as the Notification of Convention Tower Crane Regulations and the Construction (Head protection) Regulations which are simply unnecessary or duplicatory.
HSE will direct all local authority health and safety inspection and enforcement activity
The Government is conscious that it does not want to move towards a centralised system that is further removed from local businesses and communities. Knowledge and experience of local inspectors is very important. However is was recognised there is a need for improved training of inspectors and the need to take a more consistent and proportionate approach to enforcement. A review of the Primary Authority scheme is ongoing and plans to address these issues will be announced soon.
The original intention of the pre-action standard disclosure lists is clarified and that regulatory provisions that impose strict liability should be reviewed by June 2013
Löfstedt noted that many employers do not make a distinction between health and safety regulation, which is criminal law; and personal injury claims, which is civil law. The fear of civil litigation has often been the main driver behind over zealous implementation of health and safety requirements – just look at any of the “bonkers conkers” stories to confirm that. In my view this complicates the issue and makes it difficult for employers to focus on the real health and safety risks.
Pre-action standard disclosure lists were originally designed to be a specimen list of documents that might be material in resolving personal injury claims as per the Lord Woolf Reforms of 1999. Löfstedt reported that employers are encouraged to settle claims if all the paperwork is not in place, regardless of their overall compliance record – again a practice many of us in the industry will be familiar with.
Löfstedt also reported concerns on offences which impose a ‘strict liability’ duty (i.e. there is no defence of having done all that is ‘reasonably practicable.’) From a criminal perspective, regulators still have the choice as to whether criminal enforcement action should be taken. However, in the world of civil litigation, liability follows as a result of health and safety breaches where the liability is strict. Therefore, employers find themselves paying damages despite having taken all reasonable steps to protect their employees from harm. The Government will look at ways to redress this balance.
Working with the EU
With half of all legislation affecting UK business originating from the EU, the Government recognises the need to work more closely with the Commission to ensure that both new and existing EU health and safety legislation delivers a proportionate, risk based approach.
Conclusion
The Löfstedt report follows on from the Lord Young report Common Sense, Common Safety. The UK regulatory regime is very cumbersome to negotiate, and doing all that is reasonably practicable is a difficult task – it is therefore important that businesses seek the correct advice so they can concentrate on reducing the risks that need to be reduced. Having a positive safety culture within your organisation is key. Good health and safety require the buy in from every member of staff, from director to worker. Without this, the system will fail. I hope the Löfstedt report assists employers with their duty whilst allowing for a more streamlined regulatory framework.
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