Assure 360

Enforcement visits – without teeth, can the HSE clamp down on Covid infringements?

Written by Nick Garland on 10/02/2021
 

The Covid pandemic is virtually unprecedented in living memory. And aside from the awful human cost, its impact on the economy will be felt for many years to come. As a health and safety consultant, I’m also fascinated by the challenges it has created around workplace safety, and the effect on employers, employees and the regulator as we all try to stay safe.

And what of the regulator? The Health and Safety Executive (HSE) has been under enormous budgetary pressure for many years. And over the long months of the pandemic, I’ve become increasingly concerned that its lack of resources is hampering its ability to enforce Covid-safe working conditions.

Let’s begin by looking at how the HSE’s budgetary challenges were already impacting its operations before Covid. Looking at the data from the 2017-18 and 2019-20 annual reports, we can see the following:
 

  HSE Annual Report

2017 / 2018

HSE Annual Report

2019/2020

Proactive inspection visits 20,000 13,300
Prosecutions Not reported 355
INs Not reported 5,000
PNs Not reported 1,900
Asbestos visits 1,000 900
Inspectors 1,058 1,059
Prosecutions 509 355
Construction fatalities 30 40

 

While the number of inspectors didn’t drop between reports, site visits did very markedly. Even the HSE’s attendance on asbestos sites fell by 10%. In the same period, prosecutions were down by 30%, and construction fatalities climbed by a third.

The tail end of this reporting period also saw the emergence and spread of Covid-19. The HSE recently told the Guardian that it had made 32,000 site visits during the pandemic. Meanwhile, the HSE’s Coronavirus management information dashboard provides this monthly breakdown of covid case notifications throughout 2020-21:

monthly breakdown of covid case notifications throughout 2020-2

 

If these figures are accurate, they represent a massive surge in activity for an already overstretched body. Despite the recent trend of falling attendance on site and a reduction in prosecutions, there has now been a huge increase in numbers of unannounced visits. But is it having the desired effect?

Soaring infections

Nationally we have seen very worrying increases in the infection rate during the most recent wave of the pandemic, and data from PHE suggests that some of this is coming from workplaces.

The latest Public Health England surveillance data suggests workplace infections surged as people returned to work in January. The number of coronavirus outbreaks in workplaces rose by almost 70% in the first week of the national lockdown, with 175 Covid case clusters reported in English workplaces

The Guardian 16th January 2021

Before continuing, I wanted to provide a short reminder of the levers that the HSE has available when it comes to enforcement. As a starting point, it can issue verbal and written instruction or guidance, which can be as simple as a chat or email from the inspector.

Certainly within the licensed asbestos removal industry, these basic measures have some real weight. If you don’t act effectively on instruction or guidance there can be dire consequences during licence renewal. However, in other less heavily regulated industries I’m not sure whether they provide quite the same imperative to act.

The HSE’s next level of action is quite a big step up. Improvement Notices (IN) give detailed instructions on what improvements you need to make, and by when. They can be appealed, but unless that’s successful you will need to act.

Next come Prohibition Notices (PN), which are very severe – and often also lead to prosecution. A PN essentially stops a certain activity immediately. Again, you can appeal, but the stoppage still kicks in with immediate effect. PNs can be wide-ranging and major: they can shut down an entire construction site or factory.

So, has the surge in HSE visits to companies translated into more of these enforcement actions? Recent news articles would suggest not. According to a January 2021 analysis by the Observer, the HSE had been contacted nearly 97,000 times on Covid-related workplace safety issues – including 2,945 times between 6 and 14 January alone. The newspaper found that overall, just 0.1% of these Covid safety cases received an IN or PN. A simple calculation suggests that’s roughly 97 Covid-related enforcements throughout the pandemic.

A January BBC News article quoted slightly higher figures for complaints during the same 6-14 January period, and suggested significantly higher levels of enforcement. In that week, it says the HSE received 3,934 coronavirus-related complaints, and took action in 81 cases. However, it notes that only one company faced more than a verbal or written warning.

Are offices being overlooked?

A brief look at the enforcement action register suggests that the number of enforcement notices might even be lower than these headline figures. I found eight PNs where the only reason COVID was mentioned was as a justification as to why another misdemeanor was hard to close out. A similar investigation into the INs might show up similar cases.

Further analysis shows another interesting trend – Covid-related enforcements seem to centre on companies in the construction sector. Of the nine remaining PNs I found, five went to just two companies. Of the six companies found at fault, all but one were in the construction sector – and the inspectors’ comments seem to focus on washing facilities.

This seems out of step with reality when, as the BBC notes, the 500 confirmed or suspected office outbreaks in the second half of 2020 were more than those centered on supermarkets, construction sites, warehouses, restaurants and cafes combined. So why were no PNs issued here?

As others have noted, while workplace safety enforcement in the UK as a whole relies on the Health and Safety at Work Act (HASAWA), Scotland has legally obligated employers to ensure their employees can work from home wherever possible. But is this the most sensible health and safety advice?

HASAWA should give ample powers to the regulators. Since 1974, employers must assess the risks at work and reduce them so far as reasonably practicable. And if they don’t there is the big stick of enforcement action and prosecution. Many of the examples given in the articles above appear to be pretty flagrant breaches.

However, home working or furloughing staff might add financial burdens that are the final straw for a company’s survival. And therein lies the balancing act for an employer. I can imagine situations where, in the face of practical and financial challenges from sending people home, a diligent employer is instead able to make the workplace covid secure. The flexibility of HASAWA allows this to happen. If home working was an employee’s right, imaginative and effective solutions might not exist, and some companies may not survive.

Risk assessment

Obviously, where it’s reasonably practicable, the goal should be to eliminate the risk. In the case of Covid-19:

  • The hazard is transmission of the virus in the workplace
  • Elimination of this risk would be for employees to work from home
  • Mitigation / reduction of the risk might include measures such as masks, regular testing, workplace distancing, one-way systems or increased fresh air ventilation

Elimination may be impossible, or very burdensome, whereas mitigation may bring the risk down to a low enough level for people to remain in the workplace.

Despite this, in many cases cited by journalists it looks like little or no effort has been made. Interviewees speak of working side by side in warehouses, or conducting telephone sales and administration in a very small or poorly ventilated office.

The law is simple: if a company has not done enough to mitigate or eliminate a risk, then they are liable for serious punishment. But only if they get caught. With 33,000 visits, it’s clear that the HSE is making serious efforts to enforce safety during Covid. But with only approximately 80 INs and nine PNs, the evidence suggests that its approach to enforcement might be very light-touch.

Beware relying on advice

An example contained in a second BBC article hints at where we might be going wrong on workplace Covid safety. A member of the public alleges that he works among 30 people on one floor of his employer’s office, that the windows are always closed, and – unbelievably – that they still hot-desk. With five or six covid cases apparently linked to the firm, it seems a clear example of a company not doing enough, or at least taking actions that are demonstrably not working.

The firm states in its defence: “We have worked closely with Public Health England since the start of the pandemic to implement extensive safety measures in line with government advice.”

And for me, that’s the heart of the issue.

During the pandemic, companies are looking to the guidance and – in far too many cases – scratching their heads on how they follow it and still make a profit. What they’re not doing is following the principle on which the HASAWA is built: looking at their underlying duties, and ensuring they take effective and specific actions to deliver a safe workplace.

An employer is compelled by law to ensure that its place of work is as safe as possible. The government also provides helpful advice (guidance) on how employers can fulfill this legal duty. How you go about making your workplace safe is, to some extent, up to you. You can follow the guidance, or craft something else – but the immutable fact remains that your legal duty is to make it safe.

My fear is that the HSE’s approach may be permitting a culture in which companies can point to generic guidance, in place of implementing specific measures that keep their employees most safe in their specific workplace. The HASAWA is beautifully crafted to get the extra mile out of employers – but if there is no enforcement, then an important pillar is missing, and the whole church is at risk of falling down.

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