The state of the health and safety culture
Surprising figures released recently may provide a clearer indication of things to come for directors and senior managers. Speaking recently, David Cameron pledged to help small businesses cope with “the great big machine of health and safety that has built up over the years” and free them from the “stranglehold” of red tape it has created. The impression is a future with fewer rules and regulations and less burdensome bureaucracy.
But as Professor Ragnar Lofstedt – commissioned by the Department for Work and Pensions to carry out a review of health and safety legislation – points out, “the problem lies less with the regulations themselves and more with the way they are interpreted and applied”.
“The scope for changing health and safety regulation is severely limited by the requirement to implement EU law,” he says, adding that “many of the requirements that originate from the EU would probably exist anyway, and many are contributing to improved health and safety outcomes.” In terms of regulatory requirements, it’s unlikely that most business leaders will end up feeling as liberated as the Prime Minister would have us believe and unofficial figures obtained by Manchester solicitor Lee Hughes provide a check.
In answer to Mr Hughes’s freedom of information request, the Health & Safety Executive (HSE) revealed that the number of directors and senior managers who were personally prosecuted under section 37 of the Health & Safety at Work etc. Act 1974 has risen by 400 per cent in five years. Section 37 makes it possible for individuals within a business to be prosecuted if an offence has been committed as a result of the individual’s consent, connivance or neglect.
Forty-three directors, senior managers and company secretaries were prosecuted under section 37 in 2010/11 alone.
This illustrates the tendency of the authorities to single-out individuals wherever possible – and is a significantly more potent deterrent than prosecuting corporate bodies alone.
A wholly unexpected finding from the freedom of information release was that most of the directors and senior managers were personally prosecuted for offences unconnected with any injury. It would be easy to believe that the likelihood of being prosecuted for a health and safety offence is low and only likely to occur following a fatality or serious injury but the opposite would seem to be the case.
Of the 43 prosecutions, seven arose from investigations that followed a fatality, 15 from investigations where there had been no fatal incident and 21 where no incident of any nature had occurred. Is Mr. Cameron’s vow to “kill off the health and safety culture for good” likely to reverse this trend?
The notion of a more liberal approach to regulation and a lighter-touch approach to enforcement suggested by the government rhetoric seems unlikely. The expectations of the regulators and the courts are likely to remain the same and they are demanding.
A more responsible message to business leaders is that protecting the health and safety of your employees is an essential part of management and it must be led from the top. For smaller companies especially, the financial penalties and the reputational damage that accompany breaches in health and safety law are great. Not being aware is not a defence.
As a leader you should anticipate potential breaches in health and safety law and take the initiative. You can be personally liable when the duties the law places on your organisation are broken. A more responsible approach is to support business leaders by helping them realise the significant opportunities of better health and safety management. According to recent studies by the HSE, directors are becoming increasingly anxious to protect their personal reputation and seek to do so by protecting the corporate reputation of the organisation they work for. Rather than seeing the threat to reputation as a negative that should be avoided, directors are increasingly aware of the business benefits that can arise from establishing a good reputation for health and safety. An excellent starting point is the joint Institute of Directors and HSE publication “Leading Health & Safety at Work” which aims to help business leaders seize the reins and find ways to achieve better health and safety performance.