Caution: Government redrafting programme underway
The government has kick-started an overhaul of health and safety legislation in an effort to slash red tape and cut costs for business. What will it mean for construction? Stephen Cousins reports.
When Prime Minster David Cameron pledged last month to kill off the health and safety (H&S) culture in the UK, calling it a “monster” and an “albatross around the neck of British businesses”, his comments sparked criticism from many in the construction sector, which has long struggled to transform worker and employer attitudes to H&S and rectify its poor record for injuries and fatalities.
Cameron’s comments came shortly after the government gave its broad backing to recommendations set out in an independent review of H&S legislation led by top risk management specialist Professor Ragnar Löfstedt.
Professor Löfstedt’s report — Reclaiming health and safety for all: An independent review of health and safety legislation — forms part of a wider review of business regulation, the Red Tape Challenge, and was commissioned in an effort to reduce bureaucracy, simplify safety compliance for businesses, cap legal fees in H&S-related disputes, and ultimately save the country billions of pounds a year.
Prof Löfstedt’s recommendations are not the radical overhaul that Cameron’s comments imply, but more an attempt to refine the regulations and reassert common sense at the heart of H&S. There has been a steady reduction in construction fatalities over the past 10 years, thanks largely to the effectiveness of existing laws, so rather than rewrite the rule books Löfstedt’s intention is to improve the clarity and overall structure of legislation and avoid duplication — a goal that will be welcomed by many in the industry.
Prof Löfstedt also acknowledges that the problem is often not with legislation itself, but with the way it is interpreted and applied, either by regulators that are inconsistent with enforcement, by third party organisations that promote the generation of unnecessary paperwork, or by overzealous companies that exceed regulatory requirements.
The government says it will adopt a number of the recommendations from Prof Löfstedt’s report. These are:
- the HSE will consolidate various sector-specific regulations to make the regulatory framework simpler and easier to understand, while maintaining the same standards of protection
- up to a million self-employed workers will be made exempt from H&S regulation;
- legislation will be changed to give the Health & Safety Executive (HSE) the authority to direct all local authority H&S inspection and enforcement activity;
- the HSE will review all its Approved Codes of Practice (ACoPs) to make them easier to understand;
- in an effort to stem the fear of litigation, which has become a major driver for over-zealous implementation of H&S, regulatory provisions which impose “strict liability” will be reviewed and either qualified with “reasonably practicable” where strict liability is not absolutely necessary;
- in addition, the government has said it will set up a new challenge panel to allow businesses to question H&S inspectors’ decisions and get them overturned immediately if they have got it wrong;
- the Reporting of Injuries, Diseases and Dangerous Occurences Regulations over three-day injury reporting requirement will increase to over seven days;
- and the government will encourage a much closer working relationship with the EU, which dictates much of our regulation, to ensure the UK engages with and contributes to future regulation.
Since announcing these measures in late November, Cameron says that many of them will be brought forward to be completed this year. Below we outline three areas addressed by the report that will affect construction.
1. Helping industry understand the regulations
Löfstedt’s review pinpoints the many practical problems arising from the poor interpretation and over-application of safety regulations, which lead to higher costs and bureaucratic confusion.
One area where this is particularly apparent is in Approved Codes of Practice, which are intended to help dutyholders understand and meet their H&S obligations, but instead often cause confusion because they are written in a complex and legalistic manner. Given the fact that ACoPs have legal status and employers that fail to follow the provisions of an ACoP can face prosecution, it’s vital that the documents are simplified to make them easy to understand to all.
The ACoP for the Construction (Design and Management) 2007 regulations have greatly added to the burden of paperwork, says Peter Caplehorn, technical director at architect Scott Brownrigg: “CDM 2007 is a classic example, we start off with a relatively simple principle and not too extensive regulations, then we add a 140+ page ACoP and a whole industry springs up on the back of that requiring additional certification and proof. We need to keep in focus the principle of the regulation, what it really means and act proportionately. We have a habit in this country of giving people a rule, which they immediately embellish with a procedure and a box to tick, it’s almost a national disease.”
In response to Lofstedt’s recommendations, the HSE has been asked to carry out a review of the CDM 2007 ACoP by April, which will no doubt also be informed by the Executive’s ongoing review of the CDM 2007 regulations.
2. Self-employed exempted from regulation
The government plans to exempt a million self-employed from their statutory duties if their work activity poses no potential risk of harm to others, but how this will apply to the construction industry, which is inherently hazardous, is critical given that on many sites well over 50% of staff are self-employed.
At present it is unclear what criteria will be used to assess whether a work activity poses a potential risk to another person. UCATT claims the situation will create a legal nightmare unless construction and other high-risk industries are clearly exempted from this recommendation.
3. HSE to lead local authority inspection and enforcement
In a drive to ensure that H&S inspection and enforcement is consistent and targeted towards the most risky businesses, the government is proposing a change to legislation that will enable the HSE to direct all local authority H&S activity and oversee the development of a shared, enforceable national code.
Given its expertise in construction, plans to strengthen the HSE’s policy role will be seen by many in the industry as a positive move, which at local level could improve efficiency, although some question how it will meet this obligation when the Executive is already under-funded and overstretched.
“I spoke to someone from the HSE recently who said that the government’s targets are too tight because their funding has been cut and they don’t have the resource to meet it,” says Mike Fuller, director of Chartered Building Consultancy Mike Fuller Associates.
The HSE also recently proposed legislation that will allow it to recover investigation costs from those who break safety laws, which could potentially have an impact on work carried out by local authorities under the HSE’s direction.
If you want to have a say on the future of health and safety, the Cabinet Office will still consider comments submitted via its Red Tape Challenge website as part of the regulatory reform process. www.redtapechallenge.cabinetoffice.gov.uk
Where the cuts begin
There are 17 Acts and more than 200 regulations on the statute book related to H&S, in addition to sector and topic specific regulations. By consolidating them, and deleting a few, the government wants to reduce their number by 50%, a tricky proposition given that most of the legislation implements an EU directive, which is more or less set in stone.
What’s more, cutting regulation by half could still have little impact on the number of duties companies must fulfil, says Peter O’Connell, secretary to the Federation of Master Builders’ health & safety group policy committee. “If you have three regulations, each containing 10 duties and combine them into one regulation containing 30 duties, you have cut then number of regulations, but not the number of duties,” O’Connell points out.
Professor Löfstedt also proposes changes to regulations where there is no evidence that they improve H&S outcomes. These include the Health and Safety (First Aid) Regulations 1981; the Construction (head protection) Regulations 1989; the Working at Height Regulations 2005; the Notification of Tower Cranes Regulations 2010; and the Notification of Conventional Tower Cranes (Amendment) Regulations 2010.
Falls from height remain the most common cause of workplace fatality, so any change to the Working at Height Regulations will be hotly debated. Löfstedt’s main bugbear is that the regulations can be over-zealously implemented, but the National Access and Scaffolding Confederation (NASC) and trade union UCATT have warned against radical changes to the law, which has helped increase operative and employer awareness to the inherent risks of working at height.
One early casualty of the changes looks set to be the Tower Crane Register, which has done little to improve safety standards.
Lifting the burden of pre-qualification
As part of its review of the CDM 2007 ACoP, the HSE will consider the myriad pre-qualification accreditation and competency schemes that have sprung up either in response to client demands or on the back of other safety schemes.
Meeting their requirements has become disproportionately difficult for contractors and consultants at the smaller end of the market that don’t have the resources to fill out numerous questionnaires or the money to pay for multiple accreditations.
“Excessive prequalification requirements are driving SMEs out of the public sector, often for very minor contracts,” says the FMB’s Peter O’Connell. “The lack of a single, transferable proof of a firm’s competence must be addressed.”
“It’s utterly frustrating,” adds Todd Hallam, group H&S manager at specialist contractor Chalcroft. “Each scheme requests the same information in their questionnaire forms, but due to different interpretations of the regulations they want it presented and reported in different ways. I completed a cost analysis of our work on pre-quals over a two-year period and we had wasted tens of thousands of pounds on it in staff time alone. Some of the schemes aren’t worth the paper they’re written on, it’s just like a membership badge — you fill in the form, they send you a certificate.”
Prof Löfstedt welcomes the work being done by the Safety Schemes in Procurement (SSIP) forum, which acts as an umbrella organisation to facilitate mutual recognition between schemes — ie if you become accredited by one member scheme you do not need accreditation from any of the others.
SSIP member organisations include ConstructionLine, Exor Management Services, Safe Contractor, and the Contractors Health and Safety Assessment Scheme, among others.