Health and Safety in the first half of 2021

Prospect has published a joint statement by Mike Clancy, General Secretary (on behalf of the union nationally) and Prospect’s branch in the Health and Safety Executive (HSE).

It covers many of the issues around controlling the risks associated with Covid as any reopening of the economy begins. It also highlights the critical importance of HSE funding ahead of the Chancellor’s budget in early March.

The statement reads:

Prospect believes that everyone has a fundamental right to be kept safe and healthy at work.

To make this the lived experience of all workers – regulation and enforcement must be proportionate and resourced. This is the route to ensuring that employers and engagers are following the law and associated guidance and have the right advice to keep everyone safe.

The Health and Safety Executive (HSE) are the UK experts on health and safety at work, and we are proud to be the trade union for the scientists, specialists and inspectors who dedicate their lives to keeping us all safe.

Re-opening the economy, and crucially maintaining workplace health and safety and controlling any spike in case numbers will be vital to any economic recovery and protecting jobs in 2021.

Far from being a regulatory burden, it is not an understatement to say workplace health and safety is now the critical enabler to business and wider economic success. That is the key lesson from 2020.

HSE Inspector regulatory powers

• HSE Inspectors always act in proportion to risk. Workplace closures and prosecution will only occur where the evidence supports it. Risk can be dealt with through discussion and advice and thereby ensure that workplaces are suitably safe and Covid secure.
• The main metric of success demonstrating good workplace health and safety is not the number of workplaces closed down or employers prosecuted, but rather the number who have been enabled to safely reopen by working together with either the regulator or their workforce and representatives.
• However, more serious regulatory interventions have their place and underpin the gravity of duty holder responsibilities. In this regard the decision to categorise Covid predominantly as a ‘significant’ rather than ‘serious’ workplace issue does unnecessarily limit the options open to Inspectors. This is because in the vast majority of cases it removes the ability to use ‘Prohibition’ rather than ‘Improvement’ Notices. Those workplaces that fail in the judgement of an inspector should face the consequences of their actions or omissions.
• In most circumstances Prohibition Notices will not be appropriate and working with the employer to swiftly make changes to improve safety to the required standard will be far preferable. However, in some cases they may be necessary, and this should be left to the experienced and measured discretionary judgement of Inspectors. For example, an Inspector may want to use a Prohibition Notice in a limited way to prohibit specific activities being carried on in a particular way or in a particular area until controls can be introduced. These controls ensure the activity is undertaken in a way that is safe and the risk is controlled, rather than immediately closing a whole business. These are the nuanced judgements that Inspectors are trained to make.
• HSE inspectors, like other members, know that we will support them in their being safe at work as they look after the working population In particular, we will support, with collective action if necessary, their right to undertake a dynamic risk assessment of the conditions they are encountering as they undertake inspections and what that means for their safety.

Section 44, Employment Rights Act 1996

• Where necessary we will support members using section 44 to leave, or not attend, a workplace where they apprehend that there is serious and imminent danger.
• However we, as a union, will use section 44 where HSE or indeed any employer of our members has failed to respond to our representations and the conditions justify the exercise of this statutory right. This ensures the correct process can be followed and that both members and Prospect can be protected from risk.

HSE funding and outsourced enforcement – the wider context

• Since 2010 the budget of the HSE has been cut by over 50% in real terms and there are now more MPs in Westminster than there are front line inspectors at the HSE.
• The government must provide sustained new investment to put this right.
• An additional £14m was made available to the HSE in 2020, however, this only replaced a fraction of the real terms’ cuts since 2010.
• This sticking plaster funding has been spent mainly on external contractors, including to recruit private sector enforcement contractors (in many cases from the payment chasing sector) known as Covid Support Officers. This has led to quantity focussed tick box enforcement which is no replacement for the advice and enforcement that can be done by a skilled, trained inspector.

Ventilation and workplaces

• The government has failed to effectively communicate the risks associated with aerosol transmission and the steps that workplaces can take to effectively mitigate to mitigate them to keep workers.
• A focus on aerosols must not detract from other controls (social distancing, hygiene etc.), but must be in addition to them as another layer of controlling Covid risks.
• The government must do much more to put ventilation on an equal footing to other Covid risks in its advice to employers, including through setting out examples of best basic acceptable standards in a range of workplaces.
• Given the huge variety of different workplaces involved there should be no one size fits all approach, but issues to be considered include:
  • How occupancy levels, in buildings and parts of buildings, relate to the amount of fresh air available, and how these occupancy levels are enforced in practice.
  • Whether face coverings need to be used in some parts of buildings, for example in communal areas and stairwells, which may have had recent occupancy of unknown individuals and which may be less well ventilated.
  • Where face coverings or PPE are needed making sure the appropriate types are supplied and used correctly
  • How more fresh air can be routed into workplace, for example by opening windows or setting HVAC systems to draw in more air from outside.

Enforcement management model

Taking account of the professional judgement of Inspectors and as we potentially progress from Lockdown, we conclude that the risks associated with Covid should be re-categorised from ‘significant’ to ‘serious’ to remove the shackles preventing inspectors from using enforcement to bring an activity to an immediate stop where their opinion supports such action. Prospect nationally and at branch level will continue to press for this change.

Statement by Mike Clancy, Prospect General Secretary and by Prospect’s Health and Safety Executive Branch