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Law for Business

Knowhow - guidance - precedents

11 SEP 2012

Current Developments in Occupational Health and Safety

This newsletter provides an overview of four issues that are of relevance to the field of occupational health and safety. The first describes the current picture as regards the main causes and extent of occupational injuries and ill health, the second explains the recommendations arising from a recent review of health and safety legislation, the third describes a new route available for businesses wishing to raise concerns about advice they have received from health and safety inspectors and the fourth highlights a change to the law in relation to accident reporting requirements. Finally, a delay in the HSE's plans to implement ‘fee for intervention' is noted.

1.  Occupational Injuries and Ill-Health Statistics: 2010/11

Fatal injuries

The confirmed figures for work-related fatal injuries during 2010/11 show that 171 workers (120 employees and 51 self-employed workers) were fatally injured, which is an increase of 24 compared to the 2009/10 figure of 147. The figure of 171 equates to a rate of 0.6 fatalities per 100,000 workers, and while this is an increase on the 2009/10 rate of 0.5, it is consistent with a longer-term downward trend (the average rate over the last five years is 0.7).

Note that these figures relate to fatal injuries, ie deaths arising from occupational diseases are not included.

The main industry sectors with the highest rates of fatal injury to workers were waste and recycling (nine fatalities, equating to a rate of 8.7 deaths per 100,000 workers), agriculture (34 fatalities, equating to a rate of eight deaths per 100,000 workers) and construction (50 fatalities, equating to a rate of 2.4 deaths per 100,000 workers).

There were 68 fatal injuries to members of the public during 2010/11 that occurred as a result of the work activities of others (note that this figure excludes fatalities associated with incidents on the railways, such as suicide or trespass).

Non-fatal injuries

These can be summarised as follows:

●        Major injuries: 24,726 major injuries to employees were reported in 2010/11, which equates to a rate of 99.0 per 100,000 workers, a reduction on the 2009/10 rate of 104.8. The highest rates of major injury occurred in construction and agriculture. Slips and trips remain the most common type of major injury, accounting for 40% of the total number of major injuries to employees, followed by injuries sustained as a result of falling from height (16%).

●        Other (‘over three-day') injuries: an additional 90,653 injuries to workers were reported, ie that resulted in them being unable to carry out their normal work for more than three days, which equates to a rate of 363.1 such injuries per 100,000 workers. This is a reduction on the 2009/10 figure of 384.7 per 100,000 workers, and is one of the lowest rates in the EU.

●        The most common type of ‘over-three-day' injury to employees were those sustained while handling, lifting or carrying (36% of all over three-day injuries), with slips and trips being the next-most-common type (23%).

It is estimated that workplace injuries resulted in a total of approximately 4.4 million working days being lost for the year.

Ill health

Based on information gathered from the annual Labour Force Survey, which contains details of self-reported ill health, it is estimated that, in 2010/11, 1.2 million people who worked during the previous year were suffering from an illness (long-standing as well as new cases) they believed was caused or made worse by their current or past work. This represents a decrease on the 2009/10 figure of 1.3 million. Of the 1.2 million, approximately 0.5 million were new cases occurring in-year.

It is estimated that work-related ill health resulted in approximately 22.1 million working days being lost during 2010/11 and, of these, 10.8 million were associated with stress, depression or anxiety, 7.6 million with musculoskeletal disorders and 3.7 million with other illnesses. These other significant types of occupational ill health include respiratory diseases such as occupational asthma, dermatitis and hearing problems due to noise exposure.

In addition, thousands of people died from diseases caused by past work exposures. Quantifying such deaths is difficult but current estimates indicate there are at least 12,000 such deaths each year, the main causes being:

●        cancer: approximately 8,000 deaths, with exposure to asbestos being the most common factor (approximately 4,000 deaths);

●        chronic obstructive pulmonary disease: approximately 4,000 deaths, the two main diseases included within this category being bronchitis and emphysema; and

●        asbestosis and other non-malignant respiratory disease: 411 deaths.

Ill health therefore accounted for at least 98% of all work-related deaths that occurred during 2010/11.

The total economic cost to Great Britain arising from all workplace injuries and ill health is estimated at £14 billion for 2009/10.


The number of prosecution cases taken by the HSE during 2010/11 was 551, an increase of 9% on the previous year. The conviction rate was 94%, and the average penalty on conviction was £35,938. In addition, local authorities prosecuted 129 cases, an increase of 10% on the previous year, with a conviction rate of 97% and an average penalty of £17,612.

As regards statutory notices, the HSE issued 11,020 notices during 2010/11, an increase of 13% on the 2009/10 figure. Local authorities issues 18,290 health-and-safety-related notices during 2010/11, the highest figure since 2002/03.

2.  Löfstedt Report

Last year, the government asked Professor Ragnar Löfstedt to conduct an independent review of health and safety legislation, and in particular to consider the opportunities for reducing the burden of the legislation on UK businesses while maintaining the progress made in improving health and safety outcomes. Professor Löfstedt's subsequent report was published in November 2011, as was the government's response.

The underlying conclusion of the report is that there is no case for radically altering current health and safety legislation, which Professor Löfstedt felt is broadly fit for purpose. The report highlights that ‘in general, the problem lies less with the regulations themselves and more with the way they are interpreted and applied', and that ‘in some cases this is caused by inconsistent enforcement by regulators and in others by the influences of third parties that promote the generation of unnecessary paperwork and a focus on health and safety activities that go above and beyond the regulatory requirements'. The report acknowledges that the legislation itself can sometimes contribute to the confusion, eg through a lack of clarity or duplication.

The report makes a number of recommendations, which, in its response, the government supports and makes clear its intention to implement swiftly. The key recommendations, along with what the government has said in response, are described in Table 1. In many cases, the action indicated in the government response has already started.


Table 1: Löfstedt Report: Key Recommendations


Government response

Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others.

The government will ask the HSE to take urgent action to draw up proposals for changing the law to remove health and safety burdens from the self-employed in low-risk occupations, whose activities represent no risk to other people.

The HSE should review all its Approved Codes of Practice (ACoPs), with the initial phase of the review to be completed by June 2012.

The government will ask the HSE to review 53 ACoPs to the recommended timetable. The aim is to ensure that they are fulfilling the purpose for which they were intended and to make them easier to understand.

The HSE to undertake a programme of sector-specific consolidations to be completed by April 2015.

The report identifies a number of areas where there is potential for consolidating health and safety regulations, thereby simplifying the regulatory framework. The report also identifies a number of specific regulations for which there is no evidence that they improve health and safety outcomes, or which duplicate other legislation, including:



the Notification of Tower Cranes Regulations 2010 and the Notification of Conventional Tower Cranes (Amendment) Regulations 2010



the Celluloid and Cinematograph Film Act 1922 (Exemptions) Regulations 1980 and the Celluloid and Cinematograph Film Act 1922 (Repeals and Modifications) Regulations 1974



the Construction (Head Protection) Regulations 1989



the Health and Safety (First Aid) Regulations 1981



the Working at Height Regulations 2005


The government will ask the HSE to draw up a timetable for consolidating or amending the regulations identified.

Legislation should be changed to give the HSE the authority to direct all local authority health and safety inspections and enforcement activity, in order to ensure that they are consistent and targeted towards the most risky businesses.

While stating that it supports this recommendation, the government also says: ‘we must not create an even more centralised approach that is further removed from local businesses and communities.' Thus, the extent of the government's support for this recommendation seems somewhat unclear. What is clear, however, is the intention to strengthen the HSE's policy role for all aspects of health and safety enforcement in order to deliver better targeted inspections and greater consistency for business.

That the original intention of the pre-action standard disclosure (Woolf) lists is clarified and restated, and that regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable' where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions.

The government will ask the Civil Procedure Rule Committee (which is responsible for the pre-action protocol for personal injury claims) to consider how the original intention of the pre-action standard disclosure lists can be clarified and restated. The government will also review all regulatory provisions that impose strict liability and look for ways to address the problem of employers being found liable to pay damages despite having taken all reasonable steps to protect their employees from harm. The government will look at ways to redress the balance, in particular preventing civil liability from attaching to a breach of such provisions.


3.  A New Route for Complaining About Advice from Inspectors: the Independent Regulatory Challenge Panel

Since January 2012, there has been a new route for raising concerns about advice and instructions received from the HSE and local authority (LA) health and safety inspectors: the Independent Regulatory Challenge Panel. The purpose of the panel is to look into complaints that the advice given by inspectors is incorrect or goes beyond what is required to control the risk adequately.

The panel is made up of independent members with the necessary experience to consider the relevant issues; it is chaired by Tricia Henton, former Director of Environment and Business at the Environment Agency. Complaints referred to the panel will be considered and the complainant informed of the findings. While it is expected that the HSE and LAs will respect the independence of the panel and take on board its findings, those findings are nevertheless advisory only. Other points to note are:

●        The panel will only consider cases from 30 June 2011 onwards. The outcome of the panel's deliberations will be published on the HSE's website.

●        The panel will not deal with complaints about formal enforcement notices that have been served, or with complaints relating to prosecutions, as there are specific legal routes of redress that apply in such circumstances.

●        Before contacting the panel, complainants should in the first instance attempt to resolve their concerns with the relevant inspector, and if the inspector's response is unsatisfactory, with the inspector's line manager.

●        Matters can be referred to the panel via the HSE's website at www.hse.gov.uk/contact/challenge-panel.htm.

It should be noted that there are other routes available to businesses that are unhappy with how they have been dealt with by health and safety inspectors, which can be used either as an alternative to the challenge panel or subsequently where the employer does not accept the findings of the panel. Where the HSE is the enforcing authority, a business can complain to the HSE's Chief Executive and/or contact the local MP. Where the LA is the enforcing authority, the business can invoke the LA's corporate complaints procedure, contact the LA's Chief Executive or the Local Councillor, and/or raise the matter with the Local Government Ombudsman. Ultimately, with both the HSE and LAs, businesses can refer the matter for judicial review.

Finally, the intention is to set up a second challenge panel shortly, which will consider requirements imposed by non-regulators on the basis of health and safety, and determine whether those requirements are justified.

4.  Changes to RIDDOR

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2005 (RIDDOR) require employers (and others who are in control of work premises) to report certain work-related incidents, including deaths and serious injuries to workers. One category of incident that until 6 April 2012 needed to be reported was injuries to workers that resulted in them being either away from work or unable to perform their normal duties for more than three consecutive days.

From 6 April this ‘over-three-day' reporting requirement changed to over seven days. Thus, employers and those in control of premises are now obliged to report such injuries only when workers are unable to perform their normal work for more than seven consecutive days (this does not include the day of the accident, but does include weekends and holidays). Note, however, that records of all over three-day injuries must still be kept. The requirements to report other types of incident, such as fatalities, major injuries and dangerous occurrences, are unaffected.

Further information on RIDDOR can be found in Chapter A1 of Jordans Health and Safety Management.

5.  Fee for Intervention Delayed

The September 2011 Jordans Health and Safety Management Newsletter described the HSE's plans to charge fees for interventions made by its inspectors on a cost recovery basis. This ‘fee for intervention' policy was due to be implemented in April 2012 via the Health and Safety (Fees) Regulations 2012; however, this will not now happen and the most likely implementation date is October 2012. The HSE cites the reason for the delay as being a need to conclude discussions about technical issues associated with the cost recovery scheme.

Ian Bollans BSc (Hons), CMIOSH and David Preece BSc (Hons), CMIOSH

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