David Hennessy, specialist in health and safety law with Brodies LLP
Health & Safety law reform is welcome but Government's war on red tape is far from won
It has long been a commitment of the UK Government to remove what it sees as a significant barrier to business – the burden of health & safety regulation.
David Cameron first outlined in a speech in 2009 his desire to tackle the red tape and bureaucracy created by legislation which he believes is disproportionate and lacking in common sense.
As the Coalition struggles to revive the flat-lining economy, business across the country will no doubt welcome the continued rhetoric in favour of revoking or improving health & safety regulation as a means to restore growth.
Earlier this month, Chris Grayling, the Employment Minister, stated his view that the UK faces a straightforward choice between cutting health & safety regulation or losing jobs abroad.
In a speech in January this year, the Prime Minister vowed to kill off health & safety culture for good and stated his desire to see 2012 go down in history not just as the year of the London Olympics and Diamond Jubilee but also for getting "a lot of this pointless time-wasting out of the British economy and British life once and for all".
So as we approach the middle of this historic year has anything been achieved or is the Government's commitment to ridding us of bureaucracy and red tape simply empty rhetoric?
The answer may be found in the recent Budget Report. As the debate raged around the top rate of income tax and the plight of pensioners, one significant announcement was largely overlooked.
This was confirmation of the Government's intention to introduce legislation this year to remove strict liability provisions in health & safety law in favour of a reasonably practicable and foreseeable test.
The move represents one of the most significant changes to employers' liability legislation since the introduction of the current regulations in the 1990s. As things stand, the law fails to discriminate between the conscientious and irresponsible employer.
When an accident occurs the employer is deemed automatically to be in breach of health & safety legislation, regardless of any precautions they may have taken.
The Government's aim is that by removing these "strict liability" provisions, employers would no longer be held to be in breach of their duties when they had done everything “reasonably practicable and foreseeable to protect their employees".
Guidance for business will also follow this summer to clarify what "reasonably practicable" means. A thorough review of your policies and procedures now could therefore lay the foundation for a legal defence in the months and years to come, therefore avoiding liability.
Alongside the planned removal of strict liability provisions, the Government is also committed to scrapping or removing 84 per cent of health & safety regulations.
The Budget Report included a reminder of the change in the requirements for reporting accidents to the Health & Safety Executive (HSE), which came into force at the start of April. Employers now only have to report accidents to the HSE where the resulting absence is seven days, whereas previously the report had to be made after three days.
So far, so good. However, the overall message for business is that these reforms are designed to lessen bureaucracy rather than permit lower standards.
A strong health & safety policy continues to play a crucial role in protecting both employees and the bottom line. Whilst the number of regulations might decrease in 2012, the cost to business of failing to comply with regulations that survive the cull could rise.
Set against the background of a 33 per cent cut to its budget, the HSE will introduce a scheme for the recovery of costs in October 2012 which is to be called "Fee for Intervention".
Under the scheme, the HSE will recover costs from those who break health & safety laws for the time and effort their inspectors and staff spend on investigating and taking enforcement action.
By way of an example, an hourly charge-out rate of £124 is being suggested for all HSE staff except laboratory staff or specialists, where the actual costs will be recovered.
According to the HSE, an inspection followed by a letter will cost approximately £750. Service of an Enforcement Notice will cost approximately £1,500. If a detailed investigation is required, costs could run to tens of thousands of pounds.
The cull of regulation is unlikely to impact significantly on the law relating to criminal liability for health & safety breaches. Falling foul of health & safety law can lead to serious criminal sanctions against businesses and individuals.
Under the Corporate Homicide legislation introduced in 2008, companies and certain other organisations may be prosecuted for management failures that lead to the death of employees and others.
The offence is committed where the way in which the organisation's activities are managed and organised by its senior management is a substantial element in the breach that led to the death.
If convicted, a company is liable to an unlimited fine which its liability insurance policy may not cover.
Although the Corporate Homicide legislation does not provide for directors to be held personally liable for an offence, individuals can still be prosecuted under existing law and can be faced with up to two years in prison.
The overall verdict? You could say "not proven" so far. The removal of the burden of bureaucracy is welcome but business must remain proactive in maintaining good health & safety standards to avoid the rising cost of non-compliance.
David Hennessy is a senior solicitor specialising in health and safety law at Brodies LLP