Feature

The Health and Safety at Work Act enters the statute books, as reported by our predecessor publication Safety and Rescue in 1974.

The articles you will read in the next The Act that changed pages are diff erent to one another in tone, in the way they scrutinise the current state of occupational health our working lives and safety and in their assessment of the challenges of globalisation. th Readers will fi nd in these articles both A special edition to mark the 40 anniversary a celebration of the accomplishments of the Health and Safety at Work Act 1974. of the past four decades and warnings about the risks of complacency. All the authors agree, however, that the HSWA Iris Cepero changed the way this country looked after its workforce and recognise its In July 1974, this magazine, then authority into heeding the warning infl uence in occupational law and called Safety and Rescue, dedicated safety expert had given for many years”. practice far beyond British borders. The HSWA marked the coming of most of its pages to report the Safety and Rescue was right. On age of occupational health and safety consequences of the explosion that 31 July 1974, the Health and Safety at legislation in the UK. As we join the one month earlier had destroyed Work etc Act received royal assent. celebrations of its 40th anniversary, the Nypro chemical plant in “Work safety: a new era begins”, we repeat words similar to those we Flixborough. “Why did 28 men die?” read one euphoric headline in the published 40 years ago: what we all shouted the front cover, describing September edition. enjoy today is the result of a growing what was then the biggest explosion Four decades later, we can resolutely social conscience, but the challenges in Britain since the end of the war. say that the hopes of the summer of ahead are big and we will fail to The magazine stressed its hope 1974 have not been dashed, a statement appropriately face them unless we are that the Flixborough tragedy was “the backed up by the 19 writers that have prepared to back them with our money ultimate lesson necessary to awaken contributed to this special edition. as well as our minds.

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total injured at work has plummeted and manufacturing, but the Health and Rt Hon by 77% from 336,701 to 77,310 over Safety Executive remains as important the same period. as ever in keeping us all safe. HSE is Mike Penning Any death is clearly a death too now bringing more cases to the lower many, but few can dispute that the courts than ever, with higher fines reduction in fatalities and injuries over handed out to convicted offenders the past 40 years is quite remarkable. and more jail terms for unscrupulous Britain is now officially one of the employers who pay scant regard to the safest places in Europe, and the welfare of their staff. world, to work. But health and safety is not about The 1974 Act introduced a new penalising people. It is about focusing modern health and safety system, minds on taking sensible precautions which paved the way for the creation in the workplace and using common of the Health and Safety Commission sense. Too many, sadly, misinterpret and the establishment of the Health and Safety Executive (HSE) as we the guidance. So much so that Minister of state for know it today, which enforces ridiculous edicts are handed down diseable people health and safety law and brings preventing loose flowers being placed MP for Hemel Hempstead irresponsible employers to justice. on graves and banning school sports Inspecting the workplace has a long days because of dew on the grass. 40 years of protecting history. The first factory inspectors Health and safety regulations British workers were appointed under the provisions save lives. What we see in most of of the Factories Act 1833. Initially their the daft excuses churned out is over- In June 1974 a massive explosion main duty was to prevent injury and zealousness or fear of breaching the ripped through the Nypro (UK) overworking in child textile workers. rules set down by insurers, not HSE. Ltd plant at Flixborough, near In 1840 a royal commission was Bogus excuses serve to merely give Scunthorpe. 28 people tragically established to investigate working health and safety a bad name. And lost their lives in the disaster conditions in the mining industry. I’m determined to stamp that out. and 36 others suffered serious It revealed accidents, brutality, lung Britain has come an incredibly injuries when the dangerous gas diseases, long hours and highly long way over the past 40 years cyclohexane escaped from the site. dangerous working conditions were in protecting its workforce. Our It shocked the nation and led to an the norm. It prompted a public outcry workplace safety record is now the act of parliament being passed that and the establishment of the Mines envy of the world, with businesses would do more to protect our daily Inspectorate. Similar bodies came in and governments queuing up to tap lives than any other. to protect agricultural workers in 1956. into our expertise. So, the next time This month marks 40 years since But it wasn’t until the major you feel like cursing a genuine health the HSWA received royal assent. All disaster at Flixborough that minds too often cursed for its misuse, it were really focused and concerted and safety regulation, just think of has nevertheless protected millions action was taken. The 1974 Act what life could be like without it. We of British workers and driven sharp swept away detailed and prescriptive are all fortunate enough to go to work reductions in injuries and deaths at industry regulations and created a safe in the knowledge that our bosses work. In fact, since the act came onto flexible system, supported by codes are legally obliged to take our safety the statute books, fatal injuries at of practice and guidance. seriously. And, as Flixborough’s tragic work have dropped by 85% from 651 40 years on, our economy may have anniversary shows, it is often better to in 1974 to less than 150 today. And the diversified away from heavy industry be safe, rather than sorry.

Health and 1802 1833 Factory Act 1802 Factories Act 1833 safety timeline The UK’s first law to protect the welfare Made provisions for the enforcement of people at work. Pauper apprentices of the law by government-appointed Health and safety has a long and were prohibited from night work and inspectors, known as the HM Factory not always noble history. The Health their labour limited to 12 hours a day. Inspectorate, whose main duty was and Safety at Work Act marks protecting children from injury and only the last 40 years in a 200 year overwork. Four inspectors were history. From the first legislation in appointed. It also extended a young 1802, it has been a rocky road to 1831 get to where we are today. Factories Act 1831 person’s maximum 12-hour working Limited working day to 12 hours for day to woollen and linen mills. those under 18.

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was estimated at £200m. Something had undermining the successful Rt Hon to change. framework established by the 1974 Robens reported to the Heath Act. After the 2010 election, they Stephen Timms government, but Labour – elected in commissioned first Lord Young to February 1974 – took the legislation review the appropriateness of UK forward. It transformed UK health and health and safety legislation, and safety management. The new model then Ragnar Löfstedt, Professor of was based on the principle of self- risk management at King’s College, regulation. Its flexible, risk-based and London, who provided a compelling proportionate approach has proved assessment. His report said: “I have resilient through four decades. concluded that, in general, there is The Act embodied a partnership no case for radically altering current approach, involving employers, health and safety legislation.” Ministers employees and other stakeholders. responded: “The government supports In 1977, worker representation the recommendations of the review.” was established, with trade unions However, the true ministerial agenda Shadow minister for employment appointing safety representatives. is different. The emphasis Professor MP for East Ham This quickly became an important Löfstedt placed on being guided by feature of the system. evidence in policy-making is at odds with Proud but not satisfied Since the Act, the number of the ideological approach of ministers. In 2014 we have good cause to fatalities at work has fallen by well celebrate the HSWA. It has saved over 75%. The ideas in the Act – many thousands of lives, and risk assessment, imposing duties provided a global template for health on employers, at the same time The current government risks and safety. encouraging consultation with the undermining the successful The Act was the result of diligent workforce – have been enshrined in framework established by work by Lord Alfred Robens, a former European legislation and are used the 1974 Act chair of the National Coal Board. In around the world. The UK is a world May 1970, Barbara Castle, secretary of leader in health and safety. state for employment and productivity, The Act has stood the test of appointed Robens to chair an enquiry time. Its flexible, non-prescriptive Labour has opposed a number of the on workplace health and safety. The approach has allowed adaptation to changes made since the Löfstedt central recommendation of the resulting a radically-changed economic and report. We voted against the removal Robens Report in June 1972 was that social environment. Globalisation of employers’ strict liability, which “those who create the risks are best and technological changes have has now been enacted. And we have placed to manage it”. This led to the made the world of work practically pointed out that the changes in the HSWA, taken through the House of unrecognisable from Robens’ day. The current Deregulation Bill intended to Commons by Michael Foot, and the service sector has hugely expanded reduce the health and safety burden creation of HSE. and there has been an enormous on self-employed people are more At the end of the 1960s, there were increase in part-time and temporary likely, in fact, to create new confusion 1,000 deaths at work per year in the UK, working. And, in the future, new and uncertainty. and half a million injuries; 23m working challenges will have to be addressed. The HSWA is a platform to build days were lost through industrial But the Act’s principles remain as upon. It is not a burden from the accidents and disease. The annual cost relevant today as 40 years ago. corporatist past to be jettisoned. through lost production and resources The current government risks Safe workplaces are everyone’s right.

1837 1844 1847 Priestley v. Fowler Factories Act 1844 Factories Act 1847 Established in common law an employer Required the safeguarding of mill Stipulated women and children could owes a duty of care to employees. gearing and prohibited the cleaning of work no more than 63 hours a week. machinery in motion. 1842 1867 Coal Mines Act 1842 Factory Acts (Extension) Act 1867 Prohibited women and children from All factories with more than 50 working in underground mines and employees and other specified allowed for the appointment of a coal industries, such iron and steel mills, mines inspector. Photograph: Lewis Hine 1909 subject to existing legislation.

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Commitment to the dignity of work of different regulations – some industries requires that work should be safe. Judith Hackitt swamped with prescriptive rules and Everyone should be able to return others with little or no regulation at all. home safely to their family after a day’s CBE Something needed to be done. work. That is good for employees, for The 1972 Robens Report concluded employers and for the economy. there were too many regulations and As we celebrate this achievement that what was needed was a regulatory we need to be vigilant, to defend the regime that set broad, non-prescriptive achievements of the Act and to reflect goals for dutyholders, underpinned by upon the new challenges we face. A a fundamental principle: “those that common sense approach to health create risk are best placed to manage it”. and safety entails managing risk, not The Act that emerged from his review eliminating it. Those best placed to swept away detailed industry regulations; ensure workplaces are safe are the it created a flexible system where people who work in them. The Health regulations describe goals and principles, and Safety Executive should be able Chair supported by codes of practice and to identify, on the basis of its own risk Health and Safety Executive guidance. Based on consultation and assessment, the workplaces it will engagement, the new regime was inspect. Government should commission designed to deliver a proportionate, research to identify priorities for A safety record envied targeted and risk-based approach. future health and safety policy. More around the world 40 years on this approach still attention needs to be given to activities The HSWA is arguably one of the best applies. Despite having diversified which account for a disproportionate away from an economy based share of workplace injuries. We need pieces of legislation on the statute predominantly on heavy industry and a new focus on occupational health. books, although we know it is often manufacturing, much of the original Thanks to Alf Robens and the misunderstood and misinterpreted. legislation he pioneered many workers It has protected millions of British vision and framework of the HSWA have been spared. Now, more must be workers and driven sharp reductions remains relevant. The principles done to build upon his achievements. in incidents of occupational death, have been applied time and again to serious injury and ill health. new and emerging technologies and In 1974, fatalities to employees sectors. The legacy is a safety record covered by the legislation in place envied around the world. then stood at 651. The latest figure Much of our current reform agenda for 2012/13 was down to 148 for is aimed at stripping out unnecessary employees and the self employed. The or duplicated regulation and helping actual reduction is probably more than smaller businesses to understand how this, as data for sectors not covered by to take a proportionate approach to health and safety law pre-1974 was not managing their risks – but the basic collected. In the same time frame, and principles remain the same. with the same caveat, non-fatal injuries Four decades on the HSWA has have dropped by more than 75%. There demonstrated it can be applied to new is still room for improvement clearly, responsibilities and new demands, but the change in the last 40 years is creating the framework for people to quite remarkable. come home safe and well from a day’s “Safe workplaces are everyone’s right.” Before the 1974 Act there was a host work in any sector of the economy.

1878 1878 1891 Factory and Workshop Act 1878 Threshing Machines Act 1878 Factory Act 1891 Consolidated all previous acts and First legislative steps towards safety Made requirements for fencing applied the factory code to all trades. in agriculture. machinery more stringent. No child under the age of 10 was to be employed and children aged 10–14 1895 years could only be employed for half 1880 Quarry inspectorate formed days. Women were prohibited from Employers’ Liability Act 1880 working more than 56 hours in a week. Gave workers protection for accidents caused by the negligence of managers. 1897 Workman’s Compensation Act 1897

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the very hotel we were expected to The impact of the Act itself has been Dr Jukka stay in was bombed by the IRA too and phenomenal, not just in Great Britain, in ruins. Where was health and safety? but globally. It is not a secret that many Takala Luckily we were six hours late. countries have adopted legislation and At that time the authoritative sources measures that closely follow the HSWA. for health and safety information One example is my present home country, were – not HSE, not HSWA – but Singapore. Although the adoption here ILO encyclopaedia 2nd edition, CIS had a long latency period the impact information sheets on machine is now clearly visible: a rapid trend guarding, the Nordic Machinery Safety downwards for accidents and increasing Committee, Swedish guidelines, and emphasis on health-related issues at soon later the enigmatic British Standard work. In my 41 years of international and 5304 on Safeguarding of Machinery. European work in this field, I can say with Finland had some 150 fatal accidents confidence that usually the first point annually including traffic and the United of reference is the British experience, Kingdom had 651, and if traffic accidents the HSE website, British research, Senior consultant to the Ministry at work in the UK were counted much British solutions and practices. of Manpower, Singapore more, perhaps around 1,500. The Finnish The ILO conventions and guides on Director emeritus EU-OSHA economy was and is roughly 10% of the health and safety have been prepared Director emeritus, ILO SafeWork UK’s. No information existed on fatal without exception in line with the British occupational diseases at that time, but experience and with British experts. The Magna Carta most likely massively more cases of The ILO framework conventions – the of health and safety fatal disease could have been counted chemicals convention and major than the number of fatal occupational hazard convention – OSH management at work accidents. systems, globally harmonized labelling When the HSWA was adopted on I heard at a conference in Vienna system, GHS or CLP and the EU 31 July, I thought I was already an in May 2014, and this information is framework directive are good “experienced “ chief of the Machinery confirmed by HSE website, that there examples. HSE experts have been Bureau at the National Board of were 148 fatal accidents in the workplace globally recruited as advisers to put Occupational Safety and Health and an estimated 550 work-related road these into practice. The chief executives in Finland, and had just returned traffic fatalities in the UK in 2013. What of HSE have enjoyed high international from the ILO-ISSA-NISO 7th World is striking is that HSE now estimates respect, from John Locke and John Congress in Dublin – my first one. there are some 12,000 fatalities caused Rimington to Geoffrey Podger. And the That travelling experience was by work-related diseases and disorders consistent, continuous, professional devastating, literally. Just as the plane every year. My own estimate made for and intelligent work that HSE staff have from Helsinki arrived in Heathrow, the ILO was 19,000 fatal work-related done is highly appreciated. Terminal 1 was set ablaze by car diseases in the UK in 2008. In fact, if there is any internationally bombs planted by the IRA. Luckily When counting further work-related recognised and respected body in we – inspectors, workers, employers disorders, such as cardiovascular safety and health today, it is HSE – from Finland – were a few minutes late diseases, the number may be even created by the Act. The reputation of in our landing. We waited for hours on higher. What is, however, important, is HSE is well known in all countries where the grass right next to the runway in that the loss caused by death, disability health and safety is taken seriously. order to change the plane and make and disease is much better recognised, It is, indeed, on a very different level our journey to Dublin. Finally, some six and measures to eliminate and reduce altogether – as if it were a different body hours later, we arrived in Dublin. But the problems are better prioritised. – from that within the UK.

Introduced payments by employers to employees in certain industries who 1911 1937 suffered injury “arising out of and in Coal Mines Act 1911 Factories Act 1937 the course of employment”. Required mine owners to make Provided a comprehensive code for provision for rescuing workers safety, health and welfare applicable to all factories. 1918 Establishment of the British Industrial ‘Safety First’ Association 1940 BISFA, which later became RoSPA, Safety First movement taken into was established to tackle workplace the Ministry of Labour to help with Photograph: Lewis Hine safety on a national scale. safety in war production.

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A good piece of legislation will grow described as moral, social and economic with time. It can be implemented Professor Dame come together to promote and safeguard gradually, more thoroughly and more the health and wellbeing of working intelligently once our evidence and Carol Black age people. These go beyond the knowledge of risks and solutions grow. requirements of legislation but reflect Exactly this has happened over the the evolutionary nature of the modern 40 years with the HSWA. What may approach of HSE and its partners. have been tolerated in the 70s cannot Naturally there is the deepest be tolerated any more. This Act with concern to reduce the risk of being a capital “A” has had an impact far killed or seriously injured at the beyond the borders of the UK and far workplace. But here I shall focus on beyond the rugby pitch. I’m convinced the health of people of working age, it will continue to do so. whether or not in work, and the duty to safeguard, manage and reduce the Future The Act will continue to grow. The job risks to health of all working age people. These are not generally matters for of HSE is not done. The goal posts are Expert adviser on health and work punctilious regulation. Rather they are moving and the coverage is widening. Department of Health The criteria for action cannot be based determined by the standards and quality on indicators derived from fairly narrow of organisational, management and past compensation criteria. What can Widening the scope health professional practice. we do to eliminate exposures? Can of occupational health Importantly, the purpose and spirit of the Act, and its supportive we achieve zero harm? What to do to The HSWA is the primary piece of implementation, are consonant with the improve wellbeing through work? legislation covering occupational I would hope that in spite of the Health, Work and Wellbeing strategy, health and safety in Great Britain. challenging pressures HSE continues set out in 2005, to improve the health In 2008 HSC and HSE merged and to listen and guard the interest of and wellbeing of working age people. HSE became the regulatory body workers around Britain, and around This is brought out clearly in statements responsible with other authorities the world, in the spirit of the HSWA. It and guidance prepared by HSE. for enforcing the Act and promoting is the Magna Carta of health and safety An initial and necessary emphasis on the cause of better health and at work. reducing the risk of sickness absence safety at work within Great Britain. or of worklessness has broadened. However, the duties and Today it includes action in the responsibilities for safeguarding workplace to safeguard and improve health and safety at work do not lie the physical and mental health and with HSE and its partners alone. Many wellbeing of employees and to promote stakeholders have a role in maintaining collaboration between employing and or improving standards. Employees healthcare organisations. too are required to take reasonable Safeguarding and promoting the care of themselves and others. health and wellbeing of 30m people, A strategic objective of HSE is to minimising the risk of illness and gain widespread commitment and supporting rehabilitation of those who recognition of what real health and do become ill or disabled, enabling safety is about and to motivate all to them to maintain, resume or take contribute to improvement. up work, are major components of “A good piece of legislation will grow with time.” Responsibilities that are variously the public health endeavour. This

Industrial Employment Hours of ‘sacrifice’, whether in money, time or 1941 Employment of Juveniles: Report by trouble, needed to avert or mitigate Formation of the Royal Society for a Committee of Enquiry the risk. This effectively implied a the Prevention of Accidents (RoSPA) Recommended that safety, health and requirement for risk assessment. welfare legislation be extended over a 1945 wide field of non-industrial employment. 1954 Institution of Occupational Safety Mines and Quarries Act 1954 and Health (IOSH) established 1949 Imposed an extensive safety regime, Edwards v. National Coal Board extending to equipment, places, Established the concept of “reasonable access, egress, processes, specific 1947 practicability”. The case established hazards, methods of working, laid Health, Welfare and Safety in Non- the risk must be balanced against statutory duties on mine managers.

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includes a part in addressing the major whose mental wellbeing is under threat. problems surrounding mental health, It is a further compelling reason Sir Bill supporting people with long-term to encourage employers to play a disorders, enabling them to fulfil their greater role in the prevention of Callagham potential in the workplace. work-related stress or mental ill health There is compelling evidence in the workforce and to support about the conditions of work and rehabilitation. There are good tools management that help promote available for employers related to individual health and wellbeing. awareness of stress, underlying work- Conversely, where those conditions related causes and actions they can have been ignored or neglected the take to prevent and reduce them. effects are manifested as impaired It means establishing a strong wellbeing, often with stress as one cultural lead and example in of its consequences. organisations, strengthening management training to recognise and respond to the health needs of the Chair, board of trustees workforce; and working more closely National Examination Board in The notion that compared with other health supporting agencies, Occupational Safety and Health with physical health conditions particularly occupational health and mental health problems are a primary care. thing apart, private and hidden, These shifts in perspective have The foundation of and often stigmatising, has brought a widening appreciation of our safety record perpetuated their neglect the scope of occupational health, which The 1974 Act was both revolutionary is not only about protecting staff from and reforming. It is a legislative known hazards or supporting those landmark that has stood the test who have declared health problems. of time. It was built, of course, on For over a decade this has been Its concerns include safeguarding and Safety and Health at Work, the 1972 highlighted in the work and efforts of promoting the health and wellbeing report of the Robens Committee. HSE. The HSE Management Standards of all staff. Enlightened employers The need for reform was clear. At approach to risk assessment is recognise, support and facilitate this the end of the 1960s around 1,000 designed to help employees and their wider view. workers a year died following accidents representatives manage the issue Addressing health and safety should in Britain’s workplaces. In 2013, with sensibly and minimise the impact of not be seen as a regulatory burden: a much bigger workforce, the figure work-related stress on business and on it offers significant opportunities and employee wellbeing. benefits that can include: reduced was 148. This dramatic improvement The notion that compared with costs; reduced risks; lower employee cannot be explained away by the physical health conditions, mental health absence and turnover rates; fewer decline in mining and heavy industry problems are a thing apart, private and accidents; lessened threat of legal and the growth of the service sector. hidden, and often stigmatising, has action; improved standing among These compositional changes will have perpetuated their neglect as a workplace suppliers and partners; better reputation had some effect, but the rates of death issue. That is changing, spurred on by for corporate responsibility among and injuries in all industries have fallen. evidence that impaired performance investors, customers and communities; Three key elements explain this among people experiencing and increased productivity, because dramatic improvement: the creation of unrecognised stress at work is perhaps employees are healthier, happier and a powerful, independent and unified even more significant among those better motivated. health and safety inspectorate, HSE;

agricultural workers and for children who recommended a body should be set up 1956 may come into contact with agricultural with responsibility for licensing future Agriculture (Safety, Health and machinery, equipment or vehicles. civil reactors. Welfare Provisions) Act 1956 Introduced comprehensive health British Safety Council founded by protection and safeguards for 1957 James Tye Windscale nuclear site fire On 8 October 1957 the core of a reactor at Windscale (now Sellafield) 1959 caught fire, releasing radioactive Nuclear Installations Act 1959 contamination into the surrounding Brought about the establishment of area. It was, and still is, the UK’s the Nuclear Installations Inspectorate Photograph: Chris Eaton worst nuclear event. The investigation within the Ministry of Power.

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the guiding principle of the Act that None of these challenges are new but “it shall be the duty of every employer I am confident that the current board Laura to ensure, so far as is reasonably of HSE and the executive staff will practicable, the health, safety and continue to address them. Cameron welfare of all his employees”; and the So I hope that we can use this 40th involvement of the social partners, anniversary of the HSWA to praise the employers and unions, in the work work of HSE and to praise the work of of HSE. health and safety professionals. Our Against this great British success record on health and safety is the best story the proverbial visitor from Mars in the world and we can build on that to might wonder why health and safety boost our overseas trade. has come in for so much criticism. HSE After chairing the Health and Safety seems to have been under constant Commission I am now proud to chair review. When one review does not find the board of trustees of the National the need for radical reform, another Examination Board for Occupational one is set up. Safety and Health (NEBOSH). Our role Partner Of course, I can understand why is to ensure that there are rigorous Pinsent Masons LLP there is concern about “elf and safety” standards for health and safety and the daft decisions taken in the qualifications, to accredit course name of health and safety, but those A rare malt providers and ensure that examinations in the know ought to appreciate the are properly run. The 1974 Act has aged well. It may difference. They ought to recognise Over half of our business now lack the national treasure status of that HSE led the way in being a comes from overseas and earlier this a 40 year-old malt whisky, but, like proportionate and risk-based regulator year NEBOSH received the prestigious Scotland’s chief export, the quality of and appreciates the importance of Queen’s Award for Enterprise the Act is demonstrated both by its “reasonable practicability”. longevity and its international renown. for Outstanding Achievement in I am not arguing for a rigid There are very few acts of International Trade. That is a great application of the status quo. HSE parliament that have embedded achievement by the staff of NEBOSH, but and the health and safety system face themselves for a generation and stood it is also a mark of the respect that other many challenges. The goal-setting the test of the modern world with little nations and overseas companies have simplicity of the HSWA has been amendment. UK health and safety law for Britain’s health and safety system. complicated by a mass of secondary rooted in the 1974 Act has become a The 2012 London Olympics were a regulations, many driven by European standard to which other nations look showcase for all that’s best in Britain. legislation. Health has been the poor to for guidance and while, like the relation in health and safety. The As well as the sporting successes, “water of life”, it may not be universally decline in trade union membership and the work of the volunteers and the appreciated, all but the most churlish recognition has reduced the beneficial impressive organisation, we should not will recognise its success. impact that safety representatives can forget the exemplary safety record in the While we lawyers tend to develop bring. There are continuing concerns construction of the Olympic facilities. a taste for the complex, the beauty of about the quality of health and safety The foundation of that safety record the Act is in fact the simplicity of its advice that some firms receive. As was the HSWA. We should be proud of ‘headline’ offences. Health and safety the service sector continues to grow that Act, proud of the improvements of law before 1974 was a patchwork in importance, so does the need for the last 40 years, and keen to continue of antiquated piecemeal provisions. consistency in the local authority improving health and safety over the Sections 2 and 3 of the Act were a enforced sector. next four decades. revolution with their overarching

1960 1961 1963 Six Bells Colliery disaster Factories Act 1961 Offices, Shops and Railway (45 fatalities) Contained power to make regulations Premises Act 1963 governing processes and plant. On 28 June an explosion caused by an Gave statutory protection to the largest remaining group of unprotected workers. ignition of firedamp killed 45 workers at Six Bells Colliery in Monmouthshire, South Wales. 1966 The Aberfan disaster (144 fatalities) Offices Act 1960 On 21 October a collapse of a colliery Introduced some statutory protection spoil tip in the Welsh village of Aberfan, for shop and office workers. Photograph: English Heritage near Merthyr Tydfil, killed 116 children

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duties, allowing for flexible application This ‘turning the tables’ on the accused to the ever-changing landscape of person is arguably one of the most Nigel the workplace. controversial aspects of the Act. The Despite the fact that health and safety imposition of this kind of burden on an Tomkins lawyers have their appetite for thorny accused has been questioned. Setting issues more than quenched by the myriad aside the objections which may be raised of regulations under the enabling powers in relation to the balance between the of the Act, it is telling that prosecutors position of prosecutor and prosecuted, still regularly use a section 2 or 3 offence it is worth considering the role of the to underpin an alleged regulatory Act in furthering the wider objectives of infringement. While regulations are the Health and Safety Executive. subject to endless revision, revocation Precisely because prosecutions are so and renewal, the sections 2 and 3 stand difficult to defend, employers are more virtually unchanged despite four decades proactive in establishing safe systems of legal dissection. of work without requiring the wake-up call of an accident. In words which Fellow of the Association of would surely be appreciated by the Act’s Personal Injury Lawyers esteemed draftsmen, employers may be While we lawyers tend to going to greater lengths to do everything develop a taste for the reasonably practicable to avoid risks to A piece of legislation complex, the beauty of the health and safety. This carries the risk to be rightly proud of Act is in fact the simplicity of that endeavours to avoid the beady eye its ‘headline’ offences of the Act become more backside- The 1974 Act and the European covering than safety-enhancing, Directives which followed it forced however it is surely no bad thing that a dramatic, much-needed, change safety priorities are forcing their way in industry’s attitude to safety at work. Previously, if you were lucky, As a litigator representing those into boardrooms and workplaces facing prosecution, it is with grudging across the country. an accident might be investigated to admiration I concede that the Act Perhaps it is the knowledge that see what could be done to prevent evidences its effectiveness by making “defending” a prosecution may be a a recurrence. The new law meant it extremely difficult to defend charges struggle which brings prevention into looking for hazards and dealing with brought under its provisions. The 95% greater focus. One can argue over them before people were hurt in the conviction rate in 2012/13 illustrates whether the Act properly balances the first place. The modern approach just how successful prosecutions tend rights of the accused. We can disagree based on risk assessment took over. to be. This is in part due to the shift in on whether it produces a safer workplace There is no better example of that the burden of proof, where an employer or a tick-box culture. Whatever your change than in manual handling law. has to prove that everything reasonably view, the Act remains substantially as it Before the Act, there was simply practicable was done to ensure safety. was in 1974, remains the go-to source of no standard for workers across the Conscientious employers invariably charges for prosecutors and has survived board. The law was based on judicial put in place new precautions after by a flexible approach which asks interpretation of cases decided on an accident, and carry out ‘lessons every employer to consider how best to old-fashioned common law negligence learned’ exercises. In so doing, they protect his employees. For that, though and a wide range of statutes and often demonstrate that they were reservations may persist, we should raise regulations, with different standards not doing everything reasonably a generous and mature dram in honour of applying all over the place. In many practicable prior to the accident. its 40th. Slainte! places, such as schools and hospitals,

and 28 adults. It was caused by a build- Insurance) Act 1969 unless the fault belonged to a third up of water in the accumulated rock Required all employers to have insurance party manufacturer or supplier. and shale, which suddenly started to to cover potential liability to employees. slide downhill in the form of slurry. Asbestos Regulations 1969 1972 Construction (Working Places) Required employers to provide local Committee on Safety and Regulations 1966 exhaust and RPE and keep premises Health at Work (the Robens Stipulated statutory arrangements clean when working with asbestos Committee) report for safety on building sites. Proposed the first comprehensive Employers’ Liability (Defective health and safety legislative Equipment) Act 1969 approach. The report proposed 1969 Stipulated that the employer is liable for that “those who create the risks Employers’ Liability (Compulsory injury caused by defective equipment are best placed to manage it”

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there was little or no statutory paint-sprayer. He injured his back when and injured at work. It is a piece of protection at all. moving an object which weighed over legislation to be rightly proud of – at Probably the best example of a lack 190lbs. The employer’s records showed least it was, until recently. of protection under the old law is section that over the months before the accident Section 47 of the HSWA stated that 72 of the Factories Act, which read: “A he’d strained his back twice and been regulations made under the Act (in person shall not be employed to lift, off work with back problems. The court effect all post-1974 health and safety carry or move any load so heavy as to be decided that for the employer to be liable regulations) carried civil liability for likely to cause injury to him.” It sounds an injury must be ‘more probable than a breach, unless expressly excluded. like a good, straightforward piece of law, not’. The court concluded that a man An amendment to the Enterprise but in practice it was a different matter, with a bad back moving an object which and Regulatory Reform Act reversed as three Court of Appeal decisions show. weighed 192lbs did not meet the test. that presumption with effect from 1 Again the employer was not liable. October 2013, apparently ‘to reduce In the modern era of manual handling red tape’. At a stroke, the right to take law those injuries almost certainly civil action for breaches of health Many people injured at work have would not have happened. Safety and safety law was removed and civil successfully brought civil claims standards have improved dramatically. action can now only be taken for a for damages. Those claims have Risk assessment would have flagged breach of duty of care. That is clearly a ensured that employers’ liability up the obvious risks of injury. Changes retrograde step and it sends out totally insurers have become another would have been made to working the wrong message. My fear is that it driver for improved standards practices to remove the risks. may lead to more people being killed Sadly HSE has always been under and injured at work in the future. resourced. As a result, prosecutions through the criminal courts for breaches Mr Kinsella was injured while attempting of health and safety law are all too few. to lift a weight of 145lbs on his own at With most accidents there is no prospect his employer’s factory. The court said of HSE enforcing the law through the Factories Act was designed to give criminal prosecutions. As a result, protection against excessive weight the drive for better health and safety only and 145lbs was not likely to cause standards has often come through civil injury to him. The employers were not rather than criminal action. Many people to blame. He lost his case. injured at work because employers Mr Peat, a man with only one leg, have broken the law have successfully was known to his employers to have brought civil claims for damages. Those a history of back trouble. He was claims have ensured that employers’ employed to lift lengths of heavy chain. liability insurers have become another He was told to ask for help should driver for improved standards. he ever need it. He was never told, Insurers have been faced with having however, how to decide when he would to pay out large sums for injuries caused actually need help. Unsurprisingly, by breaches of the law by the employers he hurt his back when lifting a heavy they insure. To maintain profits, insurers length of chain. His employers were not have been forced actively to encourage at fault as he hadn’t asked for help. He better protection for workers and too lost his claim for compensation. improved safety standards. I have no Chemicals and dust are generally covered Mr Bailey, another man with a bad doubt that without the 1974 Act far but not all aspects of health and wellbeing back, was employed by Rolls-Royce as a more people would today be killed are always addressed.

and suggested sweeping away the Scunthorpe, killing 28 people and supported by guidance and codes myriad inspectorates and prescriptive injuring 36. A chemical pipe ruptured, of practice, implementing most of regulations in favour of a goal-setting, leaking 400 tonnes of cyclohexane the recommendations of the Robens risk-based approach to health and into the fair, forming a huge vapour report. For the first time employers and safety regulation. cloud. On coming into contact with an employees were to be consulted and ignition source, the cloud exploded, completely destroying the plant. 1974 Around 1,800 buildings within a mile Flixborough chemical plant radius of the site were damaged. explosion (28 fatalities) On 1 June 1974 a massive explosion Health and Safety at Work Act 1974 destroyed a large part of the Nypro Introduced a new system based (UK) Ltd plant at Flixborough, near on goal-setting regulations, Photograph: Ásgeir Þorvaldsson

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know there is still much to be done: too and continually challenge themselves Shaun many workers are killed and injured at to improve. When you team that with work each year and with an estimated the emerging themes of recent years Davis 1.8m people suffering from an illness, – health and safety leadership, cultural believed to be caused or made worse change, improved competence and by work, there is still much more to be employee engagement on health and done, especially in the area of health safety matters – there is a potential and wellbeing. blended solution for good health and It is a sobering reminder for us safety in the workplace, assuming all that behind these statistics is not all the dimensions are all applied only enormous distress and loss consistently. for individuals and families but also What would I like to see more of massive costs to organisations and the moving forward? Personally I think economy overall. These are the reasons that health has often been viewed the we must keep on pushing forward with poor relation and I would like to see tireless enthusiasm and relentless pace us all use the Act as one of the tools Group director of safety, health, to improve performance year on year; to promote health (and the even more wellbeing & sustainability not just for the benefit of those of us underrepresented aspect of wellbeing) Royal Mail Group still around today but in tribute to those standards and raise its profile much fallen in the course of work or work- more than we currently do. A 40-year-young act related activities. The traditional occupational ill- The 40th anniversary of the HSWA is, health issues, i.e. chemicals, noise, in my opinion, a cause for celebration. dust, vibration etc, are generally Before 1974 approximately 8m covered but as the employment employees had no legal safety The Act’s clarity of purpose and landscape changes we need to change protection at work. The Act provided intent is incredibly helpful for with it and so need to ensure that us with the legal framework to the practitioner, organisation all aspects of health and wellbeing promote, stimulate and encourage and regulator alike, and one of are addressed. We need to up our high standards of health and safety in the reasons why it has remained game with issues such as mental places of work, protecting employees with us for so long health, particularly stress; an ageing and the public from work activities. population, particularly prone to The scope of the Act, as we musculoskeletal injury; and obesity, know, places a duty on everyone particularly in children – the workforce to comply, be that employers, The Act, far from being outdated, of tomorrow. This job is not for the employees, trainees, the self employed, remains as relevant today as it did faint of heart. manufacturers, suppliers, designers, when it was first introduced; more so When I think back to my training as importers of work equipment and so on; one might add. I entered the profession one thing that it is far reaching – and quite rightly so. Why do I say that? The goal-setting stood out was the simplicity of the Act, These far-reaching aspects have been dimension, a key component of the not necessarily in the wording – I am able to pull the huge levers of change – Act, remains a major aspect of good sure most ‘newbies’ to the profession change for the better. health and safety at work; it allows would agree – but the simplicity of Since the introduction of the HSWA organisations to develop standards the intention. The Act gives a clear in 1974, Britain has gone on to achieve that are suitable for them and their risk framework in which to operate, easily one of the best health and safety profile, so in that sense means they identifiable roles, responsibilities records in the world, but as we all can be masters of their own destiny and accountabilities and explains the

engaged in the process of designing Safety Executive (HSE), the operating a modern health and safety system. It arm of HSC, was formed under the 1977 also established the Health and Safety leadership of John Locke. HSE’s remit Safety Representatives and Safety Commission (HSC) for the purpose of was to enforce health and safety Committees Regulations 1977 proposing new regulations, providing legislation in all workplaces, except Established the right of a recognised information and advice and conducting those regulated by local authorities. trade union to appoint safety reps from research. Bill Simpson was appointed among the workforce. as the first chair. First HSC advisory committees HSC set up the first of a number of tripartite advisory committees with a 1979 1975 view to drawing upon the expertise of Golborne Colliery disaster Health and Safety Executive formed industry, specialist organisations and (10 fatalities) On 1 January 1975 the Health and workers’ representatives. On 18 March 10 people died and one

July 2014 Safety Management 23 Feature

implications for those that don’t meet information and advisory service and the standard. This clarity of purpose Sheila Pantry are kept informed of, and adequately and intent is incredibly helpful for the advised on.” practitioner, organisation and regulator OBE Consequently, in a nutshell, I was alike, I think this clarity is one of the employed, starting in January 1977 reasons why the Act has remained with and, most unusually, from outside of us for so long. That and its ‘enabling the civil service, to develop the new Act’ capability has meant it could HSE Information Services (it was never, move with the times and embrace new ever a library). ideas, concepts and methods with the At this time, the use of information ‘reasonably practicable’ test running technology was just starting to be a tool alongside as an ever-present bedfellow. for a very few information services in the So, far from thinking of the Act world and I was very fortunate to have the as being 40 years old, we should enthusiasm and backing of John Locke, think of it being 40 years young; we HSE’s first director general. He wanted should celebrate and acknowledge to have a modern information service Managing director how liberating it was for us and our developed that would enable anyone in Sheila Pantry Associates Ltd profession and look to the future and any UK location or workplace or even consider how we can use it to promote worldwide to have public access to the a new agenda. Information and the proposed health and safety information and advice that would of necessity wonders of technology be produced – thus the HSE Infoline The Health and Safety etc Act 1974 service was launched as a first step. was novel in many ways – even the At the same time there should be title with the word ‘etc’ was unusual. an information service that HSE’s The implications of the Act were to specialist staff – scientists, engineers, change the occupational landscape, inspectors and medical staff – would not only for the United Kingdom, but have access to, to enable them to for many other countries around the keep up with worldwide information world because of the many new and and developments. Fortunately there exciting approaches suggested by Lord were sufficient funds to enable this to happen and the HSE Information Robens and his committee. Services, which are electronically Personally, the Act’s section 11 (2) based, was launched. (b) and (c) were to have a profound effect on my life forever. The Act The technical developments stated under section 11 (2)(b) and (c): In 1977 database softwares were “General functions of the Commission rudimentary and after many discussions and the Executive... It shall be the we decided to use the Status program, duty of the Commission to make such developed at the UK Atomic Energy arrangements... Research Establishment in Harwell. “11 (2)(b)... carrying out of research, the This in itself was a great adventure publication of the results of research and in which the information technology the provision of training and information specialists manipulated the program in connection with those purposes. so that it was possible to electronically “The Act has moved with the times.” “11 (2)(c)... are provided with an hold records in a prescribed format to person was seriously injured when 1980 1981 firedamp ignited and exploded in the Health and Safety (First Aid) Plodder Seam at the Golborne Colliery Notification of Accidents Regulations 1981 in the Greater Manchester area. and Dangerous Occurrences Regulations 1980 Stipulated that employers provide equipment for administering first aid National Examination Board in Required employers to keep a record to employees if they are injured or Occupational Safety and Health of accidents and certain dangerous become ill at work. (NEBOSH) established occurrences and report these to HSE.

Pneumoconiosis (Workers’ Control of Lead at Work 1983 Compensation) Act 1979 Regulations 1980 Sir John Cullen appointed chair of HSC

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index documents, articles, reports, standards, legislation, guidance and advice that could be retrieved easily and quickly from any location. HSELINE, as we called the database service, was so developed and wonderfully is still available, continuously updated and accessible in 2014. www. oshupdate.com is a compilation of 26 worldwide databases on all aspects of occupational health and safety and fire information and currently contains over 1.1m references and full-text documents. Computer equipment available was rudimentary at the time the HSE information service was set up. The computer equipment available and the communications were also very of data, and with a technologically- are a number of challenges in today’s rudimentary at this time. The European advanced business called SilverPlatter and tomorrow’s OSH information world: Space Agency (ESA) located in Frascati, we created OSH-ROM – holding HSE’s • Teaching students and perhaps Italy, started to offer space on their HSELINE database, the US National lecturers at universities and colleges mainframe computers to European Institute for Occupational Safety and how to research for validated and governments and HSELINE was launched Health (NIOSH NIOSHTICS) database, authoritative information – some on the ESA service in late 1979 – the first CISDOC (Occupational Safety and people now believe that information UK government agency or department to Health Database) from the International currently computerised and make this quantum leap. To dial Italy we Labour Organisation and MHIDAS searched for via Google is the only used acoustic couplers and jammed the (Occupational Safety and Health information available in the world telephone handsets into them to make Database). OSH-ROM was followed by • Learn how to work out a connections from our own visual display other services I developed including methodology to find the best units. In the 1980s ESA also offered a OSH CD, OSH-OFFSHORE, FIRE information sources. N.B. older data dissemination service (DDS), which CD, SPORTS SAFETY CD and FOOD information still has relevance – i.e. meant that we could send a form of SAFETY PLUS and now the Internet- where we have come from and why emails to information services in other based OSHUPDATE+FIRE. things get altered and improved countries to enable exchanges of OSH Shortly thereafter the use of markup • Keep up with technology and information. This was long before the languages – Standard General Markup developments ubiquity of the internet in the mid 1990s. Language (SGML) and HyperText • Don’t give advice unless you know The opportunities were immense Markup Language (HTML), which is the that the information is 100% correct. – equipment improved rapidly and standard used to create internet web so did the technology, including pages – became available and again the communication networks. HSE it was another major step in using the Two steps forward, one step back: Information Services made use of BT’s technology to hold OSH documents A brief history of the origins, Prestel, but sadly it did not prove to and information. development and implementation be as successful in the UK as hoped, During the mid 1990s everyday use of health and safety law in the UK although it was a very useful way of of the internet started for some of us. 1802–2014 available at: disseminating full text OSH information I was then involved in teaching people tinyurl.com/pth8a7z for a number of years. on how to use this evolving technology Collection of worldwide countries’ The next big adventure was CD- to obtain OSH and fire information. OSH and fire information websites ROMs, which could hold large amounts This is, in part, the history, but there oshworld.com

Asbestos (Licensing) Abbeystead pumping station Abbeystead in Lancashire, which killed Regulations 1983 (16 fatalities) 16 and injured 28 as they took part in Introduced a system of licensing On 23 May an explosion occurred an evening visit at the site. work with asbestos. at a subterranean valve house in the Lune/Wyre Water Transfer Scheme at Control of Industrial Major Accident 1984 Hazard Regulations 1984 John Rimington appointed director general of HSE 1985 Putney domestic gas explosion HSE starts to enforce asbestos (eight fatalities) licensing industry and domestic On 10 January eight residents were gas safety John Rimington killed in a major explosion at a block

July 2014 Safety Management 25 Feature

trade unions. The enactment of HSWA tripartite body – that is, it included Steve and the preceding debate and discussion representatives from employers, the around the Robens report brought unions and the regulator. Perkins health and safety to the fore – it forced A health and safety culture employers to pay attention to it and The AFARP concept is important enabled the unions to champion it. to sensible risk management and Now, it is so significant that central to the management of health everyone takes it for granted. and safety in the UK to this day. It The changes it wrought acknowledges that controls should HSWA was an enabling act, which be based on the level of risk, and it meant that other health and safety provides flexibility for employers to legislation could be brought in under it manage risks proportionately. relatively simply. In legal terms, once Incredible progress in the protection any new regulations have been passed of worker health has been made – and many have been, and quickly, because of HSWA. As an example, Chief executive too, since 1974 – they become part of before the introduction of COSHH only BOHS, The Chartered Society for the Act itself. Before, acts had to be a few hazardous substances were Worker Health Protection continually and consumingly repealed regulated, and then only in specific and replaced. situations – so chromium VI, for Enabling, ground- It was also nothing short of instance, was covered in electroplating ground breaking in its goal-centred processes under 1931 regulations, but breaking and simple approach which, together with the not in any other situations. I can’t over-emphasise the “as far as is reasonably practicable” Under COSHH, hygienists were significance of the HSWA. Pre- (AFARP) provision, led naturally to expected, for the first time, to consider HSWA there were lots of acts, risk assessment, which was in great all the chemicals in a workplace and covering different types of industries contrast to the hugely prescriptive make a considered assessment of which and workplaces, plus some special methods which preceded it. This risks were important. COSHH led to the regimes, for example, for explosives, underpinning of the Act by such a introduction of Workplace Exposure which were supported by some 500 common sense requirement has meant Limits (WELs) in the UK – previously we statutory instruments each giving the legislation was and is targeted, had relied on American values which had rigid rules for a particular situation proportionate and efficient. no legal force in this country – and there (they specified details such as the size In occupational hygiene, the first were visible improvements in exposure of guards on, separately, sausage- regulations to adopt this approach control in many workplaces. making and tripe-dressing machines). were the Lead Regulations 1980, Nevertheless, smaller companies In England alone, seven inspectorates followed quickly by the Asbestos often feel that the need to consider from five government departments Regulations and then the Control everything is overwhelming and have were responsible for enforcement and of Substances Hazardous to Health argued for clear, specific guidelines a single workplace might fall under (COSHH) Regulations in 1998. applying to their own industries, which multiple jurisdictions. So there was a The third big change was in its is in many ways a step backwards. need for improvements – the statute simplicity: the streamlining of all the Some organisations have also failed book was indeed messy – and the mood separate inspectorates into one, the to distinguish between hazard and risk of the times was for change: it was a new HSE which went on to become and as a consequence have become different world then, with a real industrial world class. At the same time, the hopelessly entangled in bureaucracy. base, many workers still employed in Health and Safety Commission Over time, health and safety has traditional heavy industries, and strong was established as the overseeing polarised to an agenda dominated by

of luxury flats in Newnham House, Reporting of Injuries, Diseases Kings Cross fire (31 fatalities) Putney, London. Investigation revealed and Dangerous Occurrences On 18 November 31 people died when a the explosion was caused by gas Regulations 1985 fire broke out at London’s King’s Cross leaking into the building from a crack underground station. The fire started in a cast iron pipe. when a dropped match fell through a gap 1986 between escalator treads and skirting Fire at Bradford City Football The Sumburgh disaster (45 fatalities) boards and set fire to grease and dust stadium – Valley Parade (six fatalities) On 6 November a helicopter that had been allowed to accumulate. On 11 May 56 people died and 256 crashed into the sea with a loss of were injured when a fire broke out in 43 passengers and two crew. The the main stand at Valley Parade, the helicopter was on approach to land at 1987 home of Bradford City football club. Sumburgh Airport Shetland Islands Control of Asbestos at Work returning workers for the Brent oilfield. Regulations 1987

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safety management and employee A common refrain in the 19th century wellness. This in itself is not a bad thing Dr Mike and for much of the 20th was that of but it does mean that everything is worker responsibility for health and dwarfed by this dual focus on medicine Esbester safety – and of being ‘careless’ in the and safety. majority of cases involving death, injury Perception of risk has become or ill health. Groups like the National distorted and political and media ‘Safety First’ Association urged the hysteria about “elf and safety madness” development of a ‘safety spirit’ as a masks many of the real problems. The result. Businesses protested about prevailing culture, then, sadly, is that state or trade union ‘interference’ in the striking reduction in annual fatal what they saw as their right to manage accidents – to 148 in 2012/13 – and work; with the prevailing political increased levels of workplace safety ethos, this meant that the state’s role, since the introduction of the HSWA have in particular, was relatively limited (if done nothing to switch the focus onto ill growing, in the 20th century). health prevention, yet the 13,000 people Health and safety formed a part of Lecturer in history who die every year from preventable industrial relations – employers claimed University of Portsmouth industrial diseases pass by virtually that they were best placed to judge unremarked. However, arguably, the appropriate measures, that they had a Act has created the environment in A longer view mutual interest with workers in improving which substantial academic research Thinking about the 40 years since the health and safety, that voluntary changes has unearthed the extent of this HSWA was passed gives us a great would be most effective and hoped occupational disease death toll and chance to reflect on the past and to that a proto-version of corporate social that, at least, is a benchmark. use it to look forward, something responsibility would prevail. These th Then versus now and beyond I’m keen to do as a historian. debates continued through the 20 Since 1974 there has been a slow but Here, though, I’d like to take us century, and echoes were found in the sure cultural shift against health and back past 1974 and raise a few longer- Robens report and subsequent HSWA. safety, which mistakes what is often term issues that have influenced how Other commentators in this lazy implementation, incompetence, occupational safety and health has special edition will say more about the consultant creep and a blame culture played out over the past 150 years detailed changes and significance of for poor legislation. The broadly or more. It’s my intention to put the the HSWA, but it is important to note political support that this view seems HSWA into a longer context and to some key points. The scope of the to have garnered is worrying and must use these views to think about the HSWA was unparalleled. It applied not be confronted. challenges faced in 2014 and beyond. only to most workplaces – including From an occupational hygiene Some key areas of the occupational homeworking – but also to instances perspective the big challenge remains: to safety and health landscape have been where occupational hazards might change the emphasis away from safety debated since the early 19th century, harm the public. However, rather than and onto health. This continuing burden if not earlier. The issue of who has specifying exact measures to be taken, of illness and death caused by industrial responsibility for workplace health and as previous acts had done, it specified disease is not evidence of the failure of safety was central: was it the worker general duties of care, to be interpreted the HSWA. If all employers complied fully on the ground; the employer, who and applied on the ground in ways with existing health hazard regulations, made the decisions that produced the relevant to particular circumstances. the vast majority could be prevented. work environment; or even the state, This had the advantage of making it Put like this: it’s always difficult to which increasingly tried to play a role much more responsive to changes understand why it hasn’t been already. in health and safety? in technologies or conditions than

Stipulated that an employer must Piper Alpha platform. The majority of to jump into the sea. Lord Cullen’s identify the type of asbestos present the emergency systems, including the subsequent inquiry made a series and taken steps to mitigate any risks. sprinklers, failed to operate. Structural of recommendations for the future collapse of the platform quickly regulation of the offshore installations 1988 followed, causing many of the workers based on the safety case regime. Control of Substances Hazardous to Clapham train crash (35 fatalities) Health Regulations 1988 On 12 December two commuter trains collided and were subsequently hit Piper Alpha disaster (167 fatalities) by a third empty train at Clapham On the evening of 6 July 167 people junction, killing 35 people and injuring died in a series of catastrophic about 500. The subsequent inquiry explosions and subsequent fire on the concluded the main cause was a

July 2014 Safety Management 27 Feature

previous legislation. There was also a logic in simplifying the existing mass of legislation and in bringing together most of the various existing OSH inspectorates as one organisation, though this wasn’t an easy task. Specifying a joint role for employers, unions and regulators was a sea change, though the reliance on self- regulation definitely echoed 19th-century approaches and early 20th-century ideas about encouraging the safety spirit.

For some, including some trade unionists, the Act didn’t go far enough. Photograph: Paul Townsend

universally welcomed. They reflected This isn’t a reason to be complacent, While I don’t subscribe to the those older debates about responsibility, as the problems look set to increase idea that history repeats itself, managerial prerogative and appropriate for some time to come, and were a many issues still exist in some roles for different parties. For some, result of opportunities missed – or form 40 years on including some trade unionists, the deliberately obscured – in years past. Act didn’t go far enough or was even More significantly, stress-related ill a retrograde step. The mantra of health has risen, probably reflecting ‘reasonably practicable’ had advantages changing societal views about stress. There’s no doubt that these were in being flexible and not proscriptive – but Challenges and opportunities huge changes in the OSH landscape it was also open to interpretation, and and introduced – in some respects – a one person’s reasonable was another As I see it, many are recognisable from new approach. It had many impacts. person’s unreasonable. Among other the pre-1974 period, some even from th It has been related to the growth of issues raised, the ideas of mutual interest the 19 century. The most fundamental the health and safety professional, as and voluntarism were questioned – a questions are about the right to be the remit of the OSH community was much more conflictual model of industrial involved in and who is responsible increased. In many respects the state’s relations and OSH still prevailed in some for OSH. We have moved on from the role saw a big extension – though people’s eyes, in which businesses would notion that this is solely a contractual whether or not there was an increase in do the minimum they could get away relationship in which employers should regulatory power has been questioned, with, as they had in the 19th century. have the freedom to dictate the terms, with persuasion often still preferred to Even accounting for structural but that ultimately responsibility for punishment, as in the 19th century. changes in British employment, it is clear OSH lies with employees. Did the general public know that in many areas rates of death, injury However, the legitimacy of the or understand that they received and ill health have decreased. Whether state’s role as regulator and the precise additional protection after 1974? It’s this is directly a result of the HSWA is reach of regulatory agencies such as debateable. From this point of view, hard to say – evidence from the early 20th HSE or the Office for Rail Regulation the Act operated behind closed doors century has taught me that such direct are still challenged by groups as until a disaster like the King’s Cross causative links are difficult to establish varied as the media, individual fire happened. At the same time, in convincingly. And there have been some companies and politicians. This isn’t the last 20 years or so, there seems to upward trends, notably related to ill confined to questioning the state’s have been increasing public hostility health: asbestosis and mesothelioma role and responsibility: trade unions, towards health and safety in general. deaths have increased, though these are professional bodies and even worker Needless to say, the changes weren’t likely to be a product of historic exposure. participation in health and safety have

signal failure due to a wiring fault and Construction (Head Protection) Responsibility for railway safety passed it laid the blame on British Rail work Regulations 1989 from the Department of Transport to practices. The company was later HSE following the Railway Inspectorate fined £250,000. receiving heavy criticism for their 1990 poor protection of rail passengers HSE starts to enforce rail safety and failure to employ modern risk 1989 assessment techniques. Electricity at Work Regulations 1989 Noise at Work Regulations 1989 1991 Health and Safety (Enforcing HSE starts to enforce offshore Authority) Regulations 1989 safety with the introduction of the Photograph: Gillett’s Crossing safety case regulatory regime

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all been challenged in recent years. increasing investment would save Promoting active managerial money in the long run through safer, Terry involvement and responsibility in OSH is healthier and happier workforces and a good thing, but the safety cultures that the population as a whole. While it might Scuoler are created must involve other partners, be more compelling in some quarters from worker and union representatives, to make the OSH case on the grounds through professional bodies to of economics, we also should not lose campaigning groups and regulators, sight of the fact that this is more than in a meaningful and constructive way. an economic issue. OSH is inherently This is all reflected in the views of worth doing, regardless of the economic some politicians and members of the benefit(s) – it is the right thing to do, public that health and safety is the and this angle shouldn’t be ignored. contemporary bogeyman, preventing Health remains a challenge, but one them from carrying out day-to- much more difficult to address than day activities as well as traditional safety. Accidents are immediate and celebrations. Understanding how health more obviously preventable; the long Chief executive and safety has been viewed and whether latency of ill health means problems EEF – the manufacturers’ or not OSH has been seen as legitimate have often only been identified after organisation is one thing I’m currently working on, significant delay, exposing many more in a project funded by IOSH. people to the sources. Greater scientific The key challenge here is how best research would certainly help. In all A model to export to rebuff notions of illegitimacy and areas of OSH, an empowered workforce When I was looking for my first real promote a safer and healthier working that is treated with respect and listened permanent job all I really knew was and living environment in Britain, and to when concerns are raised (rather that I did not want a desk-based job. beyond, given the globalisation of supply than, say, blacklisted) would be one In around 1984 I happened to see a chains. The organisations involved key means of saving or improving lives. recruitment advert for what were known recognise that the answer is promoting The immediate circumstances as class II HM inspectors of factories. the message of proportionate responses surrounding the 1974 Act reflected At the time I thought it peculiar that to the risks. So perhaps the issue is much longer-term debates and trends 10 years after the introduction of the communicating these ideas, including – and while I don’t really subscribe to HSWA inspectors were still known as the public and politicians who have the idea that history repeats itself, it is factory inspectors, not health and safety proven unreceptive to the message, significant that many of these issues inspectors. However I was soon to find that the last thing the existing OSH still exist in some form 40 years on. out that the Factory Inspectorate had a system needs is further deregulation. The HSWA was a massively significant long proud history. Another challenge is economic. In change to the way in which OSH was There were a number of ‘characters’ the current climate of funding cuts it is regulated and understood in Britain, in HSE who were not easily convinced imperative to protect state and business although not as straightforwardly that a name change was necessary spending on OSH. The past is littered positive as it might seem. and indeed the title HM chief inspector with examples of short-term cost-cutting While the 40th anniversary is a great of factories role did not disappear by reducing investment, but where this one-off opportunity for us to assess our until 2002. lead to longer-term problems, including present and future, I would make the When I joined HSE later that year additional expense and harm done to case for us to consider more frequently it became clear why the term factory people and to business reputations. what has been tried in the past, whether inspector was still appropriate. Most of Rather than reducing budgets for it has worked, and what we might do the inspection groups were structured organisations like HSE, I believe that differently in the future. along traditional factory lines including

HSE’S Offshore Division was established legislation to check whether it was Equipment Regulations 1992 at the recommendation of Lord Cullen’s still relevant and necessary in order to Personal Protective Equipment inquiry into the Piper Alpha offshore reduce the administrative burdens. The at Work Regulations 1992 explosion in 1988. The safety case review found widespread support for regime forced installation operators or the framework, but thought much of Manual Handling Operations owners to prepare a safety case and the law was seen as ‘too voluminous, Regulations 1992 submit it to HSE for acceptance. complicated and fragmented’. Health and Safety (Display Screen ‘Six pack’ regulations: Equipment) Regulations 1992 1992 Workplace (Health, Safety and Major regulatory review completed Management of Health and Safety Welfare) Regulations 1992 HSC was charged with undertaking and at Work Regulations 1992 a review of extant health and safety Provision and Use of Work

July 2014 Safety Management 29 Feature

engineering, chemicals, plastics, rubber, Although implementation of the such as issues of public concern like woodworking, etc. However, there was Act experienced a slow start, it has healthcare deaths. Perhaps HSE’s also this mysterious industry group called undoubtedly been a success story. scope is too wide in terms of its ‘new entrants’, which new inspectors It has clearly contributed to the responsibility for risks to members of generally were not allowed to join. substantial reductions in fatalities the public? The problem for HSE is that ‘New entrants’ basically covered all and non-fatal injuries we have seen they are the ‘go to’ body to investigate those workplaces which previously had over the past 40 years and clearly issues of public concern because of not been defined as factories under the placed the responsibility for assessing their reputation. These grey areas need Factories Act and included another 8m and managing risks onto employers. clarification by government. people working in local government, Government minister Mike Penning Although the HSWA is cited as a hospitals, education and a host of other confirmed in the House of Commons in success story for both fatalities and services (20 years later these were still January 2014 that the 40th anniversary non-fatal injuries, it has arguably been being called the new entrants). In terms should be appropriately acknowledged less successful in tackling health- of day-to-day inspection, the traditional and recognised as the HSWA had made related risk. The framework created inspection groups often operated much Britain ‘one of the safest places to work by the HSWA should be sufficient like the Factory Inspectorate did before in the world’. The HSWA cannot take all to allow for the effective design of the HSWA, simply cherry-picking those the credit however as we have also seen strategies that are effective in tackling parts of the Act, e.g. improvement Britain’s economic landscape change the work-related health problems. notices, which made enforcement more with a substantial decline in the more There is room for improvement. straightforward. However, the ‘new hazardous heavy engineering industries. entrant’ groups were at the forefront Manufacturing industry too has and were beginning to test principles responded to the principles contained of public risk, risk management, risk within the HSWA. Cultures have Although implementation of assessment , so far as is reasonably changed. The manufacturing industry the Act experienced a slow practicable, ‘…consent or connivance is cleaner, quieter, safer and healthier; start, it has undoubtedly been ...’, reverse burden of proof, etc. is more technologically advanced a success story It took many years for the Factory and is a much more attractive place Inspectorate and HSE to bring about to work. The manufacturing sector both the internal and external structural understands that good health and changes required to deliver the far- safety is good business. Investment in The UK and HSE health and safety reaching potential of HSWA. It wasn’t health and safety is cost effective and success is influential in other European really until the advent of the European can produce excellent rates of return. countries and indeed worldwide. Framework Directive on Safety and Health and safety performance is now The original HSC tripartite concept, Health at Work (89/391 EEC) together a component part of the corporate HSE’s reputation with UK business with its five ‘daughter directives’ social responsibility agenda and through informal as well as formal (known as the six pack) that more of important for ‘ethical’ investors. consultation, HSE’s enforcement an emphasis on risk management and The way in which the HSWA is record and approach, the enforcement goal-setting was realised. structured should make it fit for management model, the significant purpose for the next 40 years. The penalties imposed by the UK courts, principles continue to be relevant in HSE’s conviction rate and the reverse 13,000 their application to new and emerging burden of proof concept in the HSWA technologies, e.g. nanotechnology. is well appreciated. There is no doubt people die every year as result Sometimes, however, the HSWA that the HSE model and expertise could of illness related to their work is applied in situations which were be successively exported to other activities not the original intention of Robens, countries around the world.

1993 and management of construction Jenny Bacon appointed director projects, from design concept onwards, general of HSE Frank Davis appointed chair of HSC placed at the heart of the regulations. Reporting of Injuries, Diseases Chemicals (Hazard Information and and Dangerous Occurrences Packaging) Regulations 1993 Control of Substances Hazardous to Regulations 1995 Health Regulations 1994 1994 Construction (Design and Management) Regulations 1994 1995 Aimed to reduce the risk of harm to Health and Safety Laboratory (HSL) workers who build, use, maintain and becomes an agency of HSE demolish structures. Effective planning Photograph: HEA/ Loughborough University

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safety arrangements. Its broad reach progressed from focusing mainly Richard protected nearly all workers, covering on preventing traditional industrial a further 8m people, and it protected accidents, to more holistic risk Jones other parts of society too – those who management, reflecting the numerous could be harmed by work activities. socio-economic and technological Employers and employees were changes that followed. given wider duties with a focus on Previously, practitioners advised safe systems of work rather than on technical solutions and monitored the previous prescriptive technical compliance, with marked sector requirements. And approved codes of differences, for example the ‘safety practice (ACOPs) were now enabled, engineers’ in high hazard industries. helping dutyholders ‘self-regulate’ HSWA and its subordinate legislation, and providing flexibility in a rapidly combined with the UK’s movement changing world. from manufacturing to services, For myself, my first memory of a caused the role to grow and diversify. work-related incident was when, as a The many subsequent developments, Head of policy and public affairs four-year old, I thought it would be fun including HSE’s flagship guide on Institution of Occupational to cross a plank spanning a lime pit on health and safety management Safety and Health a building-site near where we lived and (HSG65) and the ‘six-pack’, fed fell in up to my waist. In those days, continuing evolution in OSH practice. No more just bad luck 20 years before HSWA and 40 years before CDM, this was just considered The Act was a radical shift from a bad luck and I was doused in cold ‘rules for everything’ approach to water and told not to do it again. It is vital HSWA retains its wide essentially just one – a deceptively Similar bits of bad luck happened coverage of workers and self simple, yet profound and far- in my early working life in the employed, avoiding a two-tier reaching one: those who create 1960s onboard naval ships, where system and that ACoPs are the risks need to manage them. I experienced chemical exposures, retained too This inspirational and bold piece of an exploding boiler and nearly being legislation has not only saved countless washed overboard – all considered lives, but importantly, changed how ‘normal’ in that environment and at people think about risk. With its that time. It was only when my career Organisations complying with the new inclusive and consultative centre, it changed and I joined a blue-chip requirements were keen to appoint marked a new era that would cast off company in the late 1970s that I realised competent OSH professionals to a well-meant, but inadequate past. things could be very different. Now the assist them and to take a management Future generations were to become focus was all on designing-in health systems approach. This new demand active risk managers and not mere and safety and managing risk, typifying saw IOSH’s membership grow from recipients of rules and we saw the national changes that the landmark around 2,000 at the time of the Robens welcome emergence of a dynamic, HSWA had generated and bringing me report to 25,000 at the turn of the forward-looking occupational safety my first contact with OSH professionals, century. The practitioner’s sphere and health profession. and, of course, with IOSH. still tackled the ‘hard’ health and HSWA’s goal-setting, risk-based The evidence that IOSH provided safety issues like machine guarding, approach embraced previously to the ground-breaking Robens review but now also ‘soft’ ones like OSH excluded worker groups and sought helped inform HSWA and catalysed management systems and human and to give employees a voice in their own change in OSH. The profession organisational factors. This broadening

1996 1998 1999 Construction (Health, Safety and Health and Safety (Enforcing Ladbroke Grove crash (31 fatalities) Welfare) Regulations 1996 Authority) Regulations 1998 On 5 October a passenger train passed a red signal and collided with a high- Control of Lead at Work speed passenger train at Ladbroke 1997 Regulations 1998 Grove in west London, killing 31 people Southall rail disaster (seven fatalities) and injuring over 400. Thames Trains On 17 September a high speed train Provision and Use of Work was fined £2m and Network Rail collided with a freight train at Southall Equipment Regulations 1998 Infrastructure (formerly Railtrack Plc) East junction. Seven people died and was fined £4m. 139 people were injured. Great Western Working Time Regulations 1998 Trains was fined £1.5m in July 1999.

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remit meant more multidisciplinary The HSWA enabled the creation of the working and renewed focus on Alan bodies to supervise its implementation, topics such as occupational health, culminating in the establishment of particularly managing musculoskeletal Murray HSE which was then able to lead and psychosocial risk, occupational guidance and practices for specific hygiene and ergonomics. industries; educating, protecting and Key parts of ‘professionalising’ OSH enforcing the legislation. practice included IOSH’s creation of At the core of education was the a national examination board in OSH, establishment of the hierarchy of accredited university courses and controls whereby the first duty was the continuing professional development identification of and the elimination of programmes. A code of conduct was risk in the workplace. The final element introduced and, in 2003, in recognition in the hierarchy of controls was and of its pre-eminence, IOSH was is the provision of personal protective awarded a royal charter. Today, IOSH equipment for the individual worker. has 44,000 members worldwide and Chief executive Robens’ vision of “an increasingly large British Safety Industry Federation and high-level role” for the profession has come to pass. Health and safety in current So, what of tomorrow? The HSWA, Education at the core times has often been forced to with its risk-based approach and justify itself and it is vital that In a time of political change in the flexibility, has stood the test of time and the UK politicians believe in the early 1970s the HSWA finally made is still protecting our future, covering value of health and safety for its way onto the UK statute books new risk areas and vulnerable groups. It the workforce in 1974. The Act was clear in its is vital HSWA retains its wide coverage objectives, which were to ensure of workers and self employed, avoiding the health and safety of people a two-tier system; and also, that at work and to protect the public ACOPs, with the assurance they provide One year before the HSWA came into against risks caused by those while industry, are retained too. force the UK joined the European working. It provided the general Health challenges, new working Economic Community and this has principles for the management of arrangements and emerging had a significant impact on workplace health and safety at work and the technologies, coupled with health and safety practices. The duties of the employer. globalisation, extended supply chains, EU Personal Protective Equipment climate change and ageing and migrant The statistics at the time of the Act Directive (PPE) of 1989 was enacted workforces, mean greater demands tell us that there were 651 workplace in the UK in 1992 establishing for CSR. This may eventually lead to fatalities, while the figure now is 148. It product compliance and performance positive directors’ duties and explicit has to be remembered of course that standards across the European market. duties around occupational health, the industrial landscape at the time was The processes established the need to competence and CSR reporting. OSH very different from that we see in the UK provide personal protective equipment professionals, as horizon-scanners and in 2014. The number of people employed to the workforce and subsequently risk advisers in the widest sense, will in high hazard industries, such as mining, established the suitability of products have an increasingly important strategic shipbuilding and steel has reduced against defined hazards. role, adding value and, like HSWA, dramatically. Nonetheless the reduction In 1994 the British Safety Industry helping keep organisations ‘out of the of fatalities is significant and the Act Federation was established to assist and lime pit’ and operating at their very best. has played a major role in that. support those involved in the industry

Control of Major Accident Hazards 2000 2002 Regulations 1999 Potters Bar rail crash (seven fatalities) Set out responsibilities for operators Revitalising Health and Safety On 10 May, a train derailed at high of plants where scheduled hazardous strategy launched speed at Potters Bar railway station, chemicals are used to prevent major The strategy marked the start of a 10- killing seven and injuring 76. Part of accidents and limit the consequences year campaign to drive improvements the train ended up wedged between of major accidents to people and in health and safety across Britain. the station platforms and building the environment. structures. In 2011 Network Rail was Timothy Walker appointed director fined £3m. Bill Callaghan appointed chair of general of HSE the Health and Safety Commission Personal Protective Equipment Regulations 2002

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to ensure that the PPE legislation and safety with key programmes was understood and applied across such as “Clean Air Take Care” and the Hugh the supply chain and that businesses “Fit2Fit Scheme”, key initiatives to involved in health and safety supply improve respiratory protection. Robertson were able to comply with the law. Retirement ages of the UK workforce The Federation continues to play an are stretching out and the need to ensure active role to educating members on that the individual retains good health for personal protective equipment and longer has never been more important. in keeping the workforce safe is at its Health and safety in current times has core. This complements the 1974 Act often been forced to justify itself and ensuring that the UK workforce is using it is vital that UK politicians believe in equipment fit for purpose. the value of health and safety for the The process continues with the workforce. The current Deregulation Bill PPE directive now being revised and seeks to remove the growing number of updated during 2014 and designed to self employed from responsibilities under come straight into UK legislation. the 1974 HSWA and that sends a very Senior policy officer Although history to date shows mixed message to the market. TUC reductions in fatalities and accidents Health and safety at work is at work, HSE’s own statistics tell us essential whether a worker is that approximately 13,000 people die Consensus under threat each year of what can be termed long- employed or self employed and latency diseases such as COPD and removing the self employed dilutes If I could sum up what the Health respiratory illnesses. the Act and adds to the difficulty of and Safety at Work Act means to me Education of the risks to all and ensuring that the UK develops a clear it would be one word: consensus. especially to the younger members health and safety culture. It was, after all, a piece of legislation of the workforce is crucial to ensuring In 2014, UK Plc should be proud of its drawn up by one government and that we eradicate long-latency illness record in reducing workplace fatalities. enacted by another. It was also about in the future. There is more work to be done but with consensus between employers and The British Safety Industry a health and safety industry growing in workers. It was, after all, overseen by a Federation continues to support health size and influence, the future is bright. body where employer and union interests were a majority. That meant that new regulations could only be endorsed if they had the support of both sides of industry. Also having primary legislation developed through regulations and ACOPs made the Act more responsive and relevant. Sadly much of that has changed. Now board members are chosen through a process that allows politicians to pick who they want, and decisions are made despite the objections of the employers or union representatives. We have seen far more resistance from the government to the very concept of regulation and The Act was about consensus between employers and workers. open hostility to ACOPs. There is also far

Control of Substances Hazardous to 2004 role of HSC, HSE and local authorities Health Regulations 2002 to improve poor safety performance, Morecambe Bay disaster (21 fatalities) engender greater worker participation, On the night of 5-6 February 35 cockle Dangerous Substances and Explosive build closer involvement between pickers, most of whom were Chinese, Atmospheres Regulations 2002 stakeholders and HSE and provide were cut off by the tide as they worked clearer information and advice in a on the cockle banks on Morecambe Bay. more accessible way. It is thought that 23 of the workers died, although only 21 bodies were recovered. Explosion at ICL Plastic factory, Maryhill, Glasgow (nine fatalities) Strategy for Workplace Health and On 11 May nine people were killed in Safety to 2010 and Beyond launched an explosion at the ICL Plastics factory Morecambe Bay. Photograph: Malc McDonald The strategy set a new direction for the in Maryhill, Glasgow. The explosion

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more political interference, as we have massive difference in safety, it has seen with the recent proposed changes failed miserably to prevent the huge toll Stewart on the self-employed regulations which of occupational cancers, or the high really have the support of virtually no- levels of musculoskeletal disorders and Campbell one outside the government. As a result, stress-related illnesses. In part that is an health and safety has become a much enforcement issue, but it is also down to more polarised issue. the reluctance of regulators to legislate However this should not detract from on issues such as stress, where there the successes of the Act. The number of is a clear need for simple enforceable fatalities has fallen by well over 80% in regulations, or MSDs where much of the past 40 years. A huge success. We the regulation is still stuck in a time- have also seen the development of risk warp before the era of home-working, assessment and the hierarchy of control laptops, smartphones and tablets. as being the norm in many workplaces. There were moves in the last decade Not all of this is down to the HSWA. to try to help occupational health If you close down a lot of the most catch up with safety with initiates such Former director dangerous jobs such as shipbuilding, as Carol Black report Working for a Health and Safety Executive Scotland heavy engineering and mining then it is healthier tomorrow and the HSE Stress hardly surprising there has been a big Management Standards, but recently fall, but despite the structural changes we have seen a retreat from this area Scotland is different to the workforce, it is estimated with politicians, regulators and enforcers Four decades ago, I was a young that around half of the fall is a direct concentrating of the more visible high HM inspector of factories, class consequence of the safer workplaces profile ‘accident prevention’ issues and II, based in the Aberdeen office, that came as a result of the Act and the ignoring the huge problems that workers covering all of Scotland north of a accompanying improved safety culture. in non-industrial workplaces face. line from Stonehaven to Fort William; Europe also has to be credited I strongly believe that we should it was a great training location. for some of the success. The 1989 still be championing the Act, but rather Within a year we had been Framework Directive, which brought in than crow about its successes, let’s also converted to HM inspectors of health the ‘six-pack’ of regulations including reflect on the fact that near 20,000 people and safety, as the changes brought the Management Regulations, was a die prematurely every year because of about by the HSWA came into force; huge step forward. Although much of their work and almost two million people our focus shifted from the factory it was based on the principles of the are living with a work-related illness. That world of fish houses, distilleries, HSWA, it took it further and provided means we have to realise its potential docks, oil rig yards, construction a practical framework for dealing with and bring back the consensus into health sites, textiles and paper-making to many of the most pressing issues, while and safety. We need politicians who encompass the wonderful world of at the same time provided a minimum recognise the long-term health effects “new entrants”, such as the health standard throughout Europe. The six of work and are prepared to deal with service and education. new regulations, which were rather them rather than make stupid statements It was an exciting time to be an grudgingly introduced by the government about the need to get rid of the “health inspector, when there was still a in 1992, have certainly, with the odd and safety culture”. We need regulation to strong base of manufacturing through exception, stood the passage of time. be seen as providing a level playing field which the history of the development I think the one area where the Act that protects the most vulnerable, rather of health and safety law could be has fallen down is in health. The Act than a burden on business, and we need traced, coupled with the challenge was clear: it was about health, safety unions and employers working together of trying to develop new standards and welfare. While it has made a at all levels. in new sectors – and using the new

occurred when liquefied petroleum after being found guilty of breaching gas leaked from an underground metal 2005 section 3 of the Health and Safety at pipe in the basement of the factory, Buncefield explosion (43 injuries) Work Act after a family of four died which caused the building to collapse. On 11 December a series of explosions when a leaking gas pipe exploded, occurred at the Buncefield oil destroying their house in Larkhall, storage depot in Hemel Hempstead, south Lanarkshire, in 1999. Hertfordshire. A large area of the site Geoffrey Podger appointed chief was engulfed by fire, which burned for executive of HSE several days and released large plumes of black smoke into the atmosphere. Hampton review published Published in March 2005, Reducing Largest health and safety fine administrative burdens – effective Buncefield explosion. Utility firm Transco was fined £15m inspection and enforcement introduced

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powers we had been given to issue to colleagues that “Scotland is In Europe, despite the 25 years or so improvement and prohibition notices. different”, although in some respects, that have passed since the Framework Before I retired six years ago, I particularly in the European context, it Directive, the implementation of returned to two of the premises is England that is different. consistent health and safety standards I visited in my first month as an The different approaches, for is still some way off. It is again worth inspector – a distillery where example, to health and justice, have remembering that in a number of there had been a bad fire in the over the last 20 years and particularly important respects the UK and ventilation system and a major metal since devolution, led to a growing many continental member states manufacturing plant, which even the diversity among the four nations of are still quite different. One of the more charitable visitor could only the UK. The more integrated approach clearest examples of this is the strong have described as a Victorian vision to health at work, which seems to me involvement in occupational health and essential in tackling common health of hell. When I revisited in 2008 they safety of state accident and ill-health problems, has been a strong feature were unrecognisable as the dark and insurance associations, such as the of the Scottish scene, at least since difficult workplaces they had once Berufsgenossenschaften in Germany. the development of the Working Backs been. I was heartened by what I saw; These associations put substantial extra Scotland campaign, and carried on both sites were still fulfilling the same resources into improving workplace function as in 1974, but both doing through the smoking ban and other conditions. In my experience, while it in conditions that were very much initiatives, but appears to be under it is true that the resources of the better than 40 years earlier. significant pressure in England. insurance associations contribute to During my five years in Aberdeen a substantially enhanced approach to I was encouraged in a number of rehabilitation, the advantage of their directions which stayed with me involvement in setting health and safety throughout my career. I gained an Since 1975 the Scottish standards is less clear. interest in occupational health, approach to prosecution has Another major difference is that in through my involvement in the been a balance between the the UK, HSE (and HSENI) concentrate on characterisation of “scampi-peelers over-riding authority of Crown occupational safety and health, whereas asthma”; I was sent into court to Office and the Procurator Fiscal in many continental states the labour take prosecutions in my first year, Service and HSE policy and inspectorates have a wide-ranging role and took a broader interest in legal priorities, and this is not well to control employment standards. issues; construction inspection was understood south of the border seen positively, which resulted in a While progress still needs to transfer to London and the embryonic be made in many important areas, construction national industry group I believe that since the HSWA came into being, health and safety standards (NIG). I expected to be south of the Since 1975 the Scottish approach in the UK have been transformed, border for three or four years, but to prosecution under the HSWA has ended up staying for 16. been a delicate balance between the but at times we seem extraordinarily In my first few years in the NIG I over-riding authority of Crown Office reluctant to represent the UK was also able to venture across the and the Procurator Fiscal Service achievement of the last 40 years Channel into the strange world of (COPFS), and HSE policy and priorities, positively. The current governmental “Europe”, and later to carry out the and this is not well understood south of criticisms of health and safety don’t first survey and evaluation of the the border. The creation of a specialist recognise the strong worldwide labour inspectorates of the European unit within COPFS to deal with health reputation of the UK approach to Community. As a result of this varied and safety cases has also helped raise occupational health and safety, and experience, I seem to have spent a the priority of such cases within the are undermining the success story of lot of my time since 1974 explaining court system. the last 40 years.

the UK Statutory Code of Practice for Regulatory Reform (Fire Safety) Control of Asbestos Regulations 2006 Regulators and outlined a series of Order 2005 recommendations with the purpose Control of Noise at Work to promote efficient and effective 2007 Regulations 2005 approaches to regulatory inspection Judith Hackitt appointed as and enforcement. It led to the creation HSE issues the management new chair of HSC following the of the Local Better Regulation Office, standards for work-related stress retirement of Bill Callaghan the forerunner of the Better Regulation Responsibility for the Adventure Delivery Office. 2006 Licensing Authority passes to HSE Work at Height Regulations 2005 Transfer of responsibility for railway The Corporate Manslaughter and Control of Vibration at Work safety from HSE to the Office of the Corporate Homicide Act 2007 Regulations 2005 Rail Regulator Contained provision allowing for

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Rimington in October 2008: Health regime for non-fault compensation. Christopher Chope & Safety Past, Present and Future. As John Rimington recognised, the I much enjoyed working with John HSWA “is a piece of Roman law, OBE between 1992 and 1996 as a ‘third i.e. law expressing not mandatory party representative’ on the Health and commands as with most Anglo-Saxon Safety Commission. John was very law but principles of conduct whose concerned about the way in which detailed extent and meaning is not at the 1974 Act, introduced as a goal first sight clear”. He rightly states that setting and deregulatory measure, was no parliamentarian who approved the being undermined by new prescriptive legislation could ever have imagined regulation. One vivid example was that it would be used to convict the his opposition – and that of the whole Metropolitan Police for mistakenly Commission – to the private member’s shooting a suspected terrorist. I share bill seeking to regulate adventure John Rimington’s analogy with the activities in the aftermath of the Lyme development of human rights law, Bay canoeing tragedy. Incredibly, the which has given rise to judicial law MP for Christchurch Conservative government at the time making on a grand scale. This has ignored the advice of the Commission, caused dismay for all those of us who choosing to indulge in what it saw as instinctively believe that the law should Regulators are moving political expediency to address public be explicit, minimalist and, where to areas they shouldn’t perception rather than adherence to necessary, strictly enforced. The manner in which the European In this 40th anniversary year of the principle and conviction. Union has been able to extend the HSWA many will have seen the Section 2 of the HSWA imposes a definition of health and safety to cover picture in the national press of a duty on every employer to ‘ensure so working time, even when it does construction worker in Southampton far as is reasonably practicable the not have any impact on health and on a high ladder, the base of which health, safety and welfare at work safety, is a further cautionary tale. was supported on the roof of a van of all his employees’. This principle Despite cross-party support for a more parked on the road. It is a timely has been steadily eroded through common-sense approach to working reminder that, despite all the efforts an increasingly strict interpretation hours for, as example, junior hospital to create a health and safety culture of what is reasonably practicable in the workplace, too many are still coupled with the burden of proof insensitive to the risk of death or being on the employer. The same injury to themselves and others. process has accompanied the section In fairness, one should point out 2 requirement that every employer that no one in the Southampton should maintain a statement of general incident was injured and at least one policy with regard to health and safety of the potential hazards had been at work of his employees. This has identified and the risk managed. A co- now evolved into an insistence upon worker was standing on the top of the a tick-box culture requiring written van supporting the base of the ladder; risk assessments to identify potential 40 years ago that might not have been hazards, even where the risks arising the case. are small. In being asked to reflect on the The 1974 Act has been used as a anniversary, I am conscious of vehicle to develop the principle of non- the seminal lecture given by John fault liability for non-compliance into a “We now have a tick-box culture.”.

companies to be prosecuted for Health and Safety (Offences) Act 2008 corporate manslaughter as a result of 2008 Made provisions for offenders who serious management failures resulting HSC/HSE merges to form one break the law to be subjected to higher in a gross breach of a duty of care. organisation fines and longer sentences. The two bodies took the decision to Construction (Design and Management) Regulations 2007 merge their powers and functions to become a new unitary body. 2009 The Registration, Evaluation, One death is too many report

Authorisation and Restriction of Baroness Rita Donaghy’s inquiry into the Chemicals (REACH) Pesticides Safety Directorate causes of fatalities in the construction The EU regulations come into force transfers from DEFRA to HSE industry recommended imposing in the UK and across Europe positive duties on directors and appointing a minister for construction.

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doctors, the UK parliament is impotent onto the agenda. About 10 times because the government is unable Lawrence Waterman as many workers have their health to secure the necessary majority in damaged and their lives shortened than Europe to revert to common sense. OBE in accidents. Despite this, as has been Depressingly, the European Union is said, for too long we have shouted safety now in the process of undertaking a but whispered health. Now health is further review of health and safety coming into focus, action is being taken legislation and I am very pessimistic and this is changing what we think about about how the UK is going to be able workplace health and safety. In some to resist the moves to a totally non-risk senses it represents a maturing of based, prescriptive regime. the impact of that great step forward The present government has been 40 years ago. trying to curb the nanny state and When the London 2012 programme compensation culture, so far with made public commitments to prevent modest results. The greater fear, fatalities, to seek to prevent life- however, is that moves in such a changing injuries and then delivered Director of health and safety direction will increasingly fall foul of on those commitments, those of us Battersea Power Station & Olympic European Union law and human rights. involved shared in the praise, the Legacy Development Corporation The other issue is that the focus commendations, the celebration of of health and safety regulation is proving that construction and accidents increasingly moving away from the Shouting safety but don’t necessarily go together. reduction of fatalities and injuries whispering health Evidence was welcomed that to less tangible areas such as work- The change in law 40 years ago construction projects could employ related stress. Stress is notoriously ushered in a new era of employers thousands of workers engaged in difficult difficult to prove objectively and taking responsibility with later work to a tight deadline and complete it introduces into the debate significant regulations embedding both worker for a great public event without hurting scope for subjectivity, introspection engagement and risk assessment. people. The message from the health and ‘compensationitis’. The time is This has been successful, driving and safety community was: yes we can. long overdue for parliament and the down accident rates and encouraging Doing so could enhance the programme courts to re-establish the principle the mind-set change of zero harm. and make delivery more certain and that an employer’s duty to prevent When the first tunnel under a river was more cost-effective. With British Safety stress should be subject to the taking constructed by Brunel – in the 1820s Council support, the philosophy was of measures which are reasonably – in only one incident building the extended to training the volunteers practicable based upon information 400m passage six men died; compare who made such a contribution to the available to or brought to the attention that to the global concerns over games-time atmosphere. of the employer. the eight deaths during Rio’s World What doesn’t get discussed So much has been achieved since Cup construction works against the enough is that the accident-prevention 1974. The disappointment is, however, background of the London 2012 safety effort was matched by an ill health that, rather than relaxing now that record and the Thames Tideway Tunnel prevention effort of similar scale: most of the worst excesses have been commitment to zero fatalities during nurses, medics, physiotherapists, resolved and relying upon education the construction of the 25km passage. ergonomists and, significantly, to deliver further improvements, the And yet, although it is commonplace occupational hygienists helped every regulators are moving on to new areas to talk about the greater harm caused by construction team wage a war against which are less serious, more difficult to occupational diseases than by workplace ill health. Of course the focus was detect and often impossible to resolve. accidents, health is only slowly coming on the workplace health hazards,

HSE launches strategy for the the prime minister David Cameron, set 2011 health and safety of GB out a series of recommendations for Launch of the Occupational Safety HSE’s strategy aimed to develop improving the way health and safety is and Health Consultants Register a ‘renewed momentum to improve applied in Britain and for reviewing health and safety performance’ through the ‘compensation culture’. The Office for Nuclear Regulation engaging everyone in improving health (ONR) launched as an agency of HSE and safety and underscoring the The Notification of Conventional importance of leadership. Good Health and Safety, Good For Tower Cranes Regulations 2010 Everyone published Required employers to inform HSE Further government plans to reform the 2010 about conventional tower cranes health and safety system outline how Common Sense – Common Safety installed on construction sites. HSE and local authorities will reduce Lord Young’s report, commissioned by their proactive inspections by a third.

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London 2012 set new standards in construction health and safety. Photograph: LOCOG reducing exposures to dust, fumes, and It isn’t plausible to have such a and safety, and there is a risk that in contaminants from previous industrial success without it having long-term some organisations airborne dust is use of the site present in the soil, but consequences for the way in which we ignored while the finger is pointed at the health protection programme see health and safety. In reciprocating workers to improve their diets. But if a naturally extended to address the motivation that Dame Carol Black’s proper, balanced approach is adopted, empowering workers to make informed work has given, it is fair to say that this as is intended at the Battersea Power choices about health issues like diet, integrated approach to occupational Station redevelopment and the works smoking, exercise and more. health and wellbeing woven into on the Thames Tideway Tunnel, then This was the first explicitly holistic the safety programme inspired her this natural development of the HSWA programme for good health in an to launch the construction pledge will finally show that health at work, industry that demands a lot from its part of the Responsibility Deal, and and not just accident prevention, can workforce, but until now hasn’t really construction has emerged as a leader be realised. looked after it. The aim, as defined by in integrated workplace safety, health Workplace-driven contributions to one of its leaders, Karen Baxter, was to and wellbeing. public health and wellbeing will surely create healthy work sites within which Discussing health with the go further. The dynamic for greener healthy workers undertook their tasks workforce ceases to have barriers cities is gathering momentum and while making healthy lifestyle choices. – respiratory protection is of workplace health efforts are reaching And the great news about this was that course about controlling airborne out into the wider community through independent research proved that good contamination, but an understanding design for health, and by access health really is good business, that the of sensitisation can also be generated to resources such as well man and programme was an investment, not a through discussions of asthma, and well woman clinics for workers and cost; that it saved much more than we many workers have children or know neighbours. If health and safety is spent, and contributed to the levels of children with childhood asthma. seen as a mark of civilised values and a of worker engagement in health and Health and safety professionals community benefit, despite the current safety – and quality and production – used to worry that health promotion fashion for deregulation, we can look to than previously realised. was a distraction from “real” health the next 40 years with confidence.

Lőfstedt report published First corporate manslaughter HSE begins its cost recovery scheme Professor Ragnar Lőfstedt’s report, conviction for business found to be in “material Reclaiming health and safety for all, was Cotswold Geotechnical becomes breach of the law”. commissioned as part of the coalition the first company to be convicted of government’s plan to overhaul the corporate manslaughter. It was fined Control of Asbestos Regulations 2012 health and safety system in Britain. £385,000 for a gross breach that led The report considers ways in which to the death of geologist Alexander health and safety legislation can be Wright in 2008. consolidated, simplified or reduced. Recommendations include HSE reviewing all guidance and ACOPs and 2012 Fee for Intervention (FFI): the Health abolishing certain regulations. and Safety (Fees) Regulations 2012 Professor Ragnar Lőfstedt.

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are injured and even killed at work. Some 1.1m workers suffered from an Ian It is testament to the importance of illness last year which they believed the HSWA that some 40 years later, it was associated with their occupation. Lavery still forms the cornerstone of our nation’s A staggering 13,000 people die per safety and health law. There can be no year as a result of their employment, doubt that the introduction of the Act through work-related disease. Latency and adherence to it has saved many periods are involved in the likes of lives and prevented serious injuries. COPD and cancer-related illness, It is easy to see why the first director but are undoubtedly a result of past general of HSE, John Locke, described workplace practices and unhealthy it as “a bold and far-reaching piece and unsafe environments. of legislation”. The Act provided a Of the 13,000 people who died means to develop modern legislation to from industrial disease, 2,291 died of govern safe working practices, seeking the dreaded mesothelioma. It’s not the input of employers and employees before time to see the Mesothelioma and outlining their duties to themselves Act, which provides compensation to MP for Wansbeck and one another. certain mesothelioma sufferers, passed Health and safety law is often by parliament, although in my view We should never rest portrayed as a barrier to productivity by major amendments are still required those ideologically opposed to it. Since to provide justice for many sufferers. on our laurels 2010 the government, through it’s ‘red Many believe these figures are actually In modern Britain, health and safety in tape challenge’ has set about weakening masked by unethical employment the workplace can often be taken for legislation. One fatality in the workplace tactics. While it is widely acknowledged granted. However, we are sometimes is one too many and the attitude of some that most employers make safety reminded of its importance by tragic who suggest otherwise, those who and health a priority others seek to events both at home and abroad. simply say ‘accidents happen’, is quite circumvent good practice in an attempt The recent tragedy to befall the frankly appalling. to maximise production and profits. miners of Soma in Turkey greatly The statistics continue to paint a Reports from various trade unions affected me, particularly having quite disturbing picture. The labour and also accentuate a growing trend of worked on the coal face myself. As a trade union movement cannot afford bullying and harassment of reps who former miner and union leader, I have to allow the issue of safety and health seek to make their workplaces safer unfortunately witnessed and dealt with in the workplace to drop from the and healthier. Individuals have been the aftermath of fatalities, but nothing of political agenda. Blunt governmental singled out and identified as trouble the magnitude of the Soma catastrophe. measures are impacting greatly on makers if they raise genuine concerns. Up and down our own country, safety and health. From a reduction to When coupled with the cuts to HSE, it industrial communities are haunted the HSE budget of 35% before 2015 simply exposes a powder keg, a ticking by memories of past tragedy; to the confusing deregulation of self- time bomb in the workplace. working people losing their lives in employed people, working people’s While the 1974 Act should be one preventable disaster or another. conditions are under attack. celebrated on reaching the milestone Thankfully most of these lie in the dim The HSE statistics for 2012/13 are of 40 years, we should never rest on and distant past, remembered only by stark. The UK experienced 148 workplace our laurels. There are those who would the communities who these disasters fatalities in 2012/13, a rate of 0.5 fatalities weaken it, those who would abolish it touched. Our legislation to protect per 100,000 workers, and 78,222 injuries and those who exploit and flaunt it. working people is some of the best in the were reported under RIDDOR, a rate of Working people should never leave world. Sadly though, even today, people 311.6 per 100,000 workers. for work and not return home.

Geoffrey Podger departs HSE Nuclear regulation leaves HSE 2013 The Office for Nuclear Regulation is Health and Safety (Sharp Instruments established as an independent public in Healthcare) Regulations 2013 2014 corporation following the Energy Act Martin Temple’s triennial review 2013 becoming law. Health and Safety (Miscellaneous The chair of the manufacturer’s Health and Safety (Miscellaneous Repeals, Revocations and organisation EEF gives HSE Repeals and Revocations) Amendments) Regulations 2013 endorsement in this government- Regulations 2014 Repealed one act and revoked 12 commissioned review, but says there Repealed two acts, including the regulations, including the Construction is “scope for innovation and change”, Factoiries Act 1961, and revokes (Head Protection) Regulations 1989 including becoming more focused on seven related regulations. and the Notification of Conventional increasing its comercial income and Tower Cranes Regulations 2010. reviewing its cost recovery scheme.

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