Assure 360

Better H&S – risk assessment vs prescription

Written by Nick Garland on 13/07/2015

Asbestos risk assessment

This article is the second in a series of three, following on from my earlier piece “Why the Brits are best at H&S?”. I demonstrate in more detail the case for a Risk Assessment approach; but go further to explore where we can look for improvements. The final article will be a case study of two infamous and catastrophic incidents. I have taken a more academic approach this time – with a few references thrown in to show my sources.

The UK approach to H&S pre H&S at Work Act was highly prescriptive and targeted at specific industries, embodied in the Factories Act (Vermico, 2009). If government failed to predict and legislate, significant accidents could occur without any breach of regulation. The number of fatal accidents in the first half of the 20th century had steadily declined. However, during the 70’s, the rate had plateaued and then increased (Dalton, 1998, p. 2) – Lord Robens was tasked with creating better legislation. Realising that the workplace was getting more complex and faster paced, he didn’t believe that the established system of regulation was up to the task.

An horrific incident in the UK that deeply affected everyone was Aberfan. In 1966 a previously unknown underground spring found the surface under the dramatically increasing slag heaps. The spring turned the foundations of the heap to an unstable slurry and the resulting landslide killed 144 people, 116 of whom were children in the local school. Robens in his role at the National Coal Board, would have been aware that no regulations had actually been breached, because the regulators hadn’t predicted the risk. The impotence of the status quo would have been painful.

Robens believed that the traditional approach of ever-increasing, detailed statutory regulation was out-dated, over-complex and inadequate (Safety and Health at Work, 1972, p. 151).

The Robens report was trying to achieve a broader coverage, to all employees, not just specific industries or work place types. The reports main thrust, was those that own the hazards are best placed to assess them. This therefore is the core of the proposal, a simple goal based system (create a safe place of work), supported by guidance would allow the hazard creators to be flexible enough to control them.

However, in the decades after the publication of his report many aspects of how he saw the world of work were going to change. The effects of the information age, globalisation and the raw geographic distance between management and site require greater flexibility and a higher degree of autonomy for the front line workers.

Supervisors in particular have been transformed by the new management approach. Local responsibilities, especially in sites remote from head office, ensure that supervisors deal with strategic decisions. Effectively supervisors are no longer seen as workers and are now a key level of management (James Lowe, 1993).

Small and medium sized businesses are on the rise, providing the majority of all private sector employment.

The 70’s and 80’s were the peak of the union membership and these began to fall dramatically in the years to come.

TUC Membership

With the reducing numbers of union members their authority has also declined, limiting influence over safety management.

In other words, the modern world of work is effectively built up of cells, either multiple independent organisations working together, or semi-autonomous teams. The role the unions once played in tying these organisations together and enforcing a good H&S culture is weakening.

Robens realised in the mid 20th century that roles and responsibilities had drifted apart (between policy makers and policy doers). In the 70s this was to say that the government could not keep pace with industry, was not aware of the risks and therefore could not legislate in advance. So it has continued in the late 20th and into the 21st century, where the policy maker is largely the company management team and the policy doers are the operatives and Supervisors on site. Management design H&S Policy, but the workers are asked to interpret and implement it.

Whilst this new flexible management style is better able to cope with the demands of the modern world, Robens did not envisage it. He saw that rigidity and hierarchy could tightly control a safe system. Decision making imposed on front line supervisors undermine Robens’ central belief of who a worker is.

Over the past 30 years, the simplification process that was the other element of Robens’ plan has started to reverse. The flat structure of a single Act with supporting approved codes of practice (ACoP) and guidance is now more a labyrinth of regulation (Pomeroy, 2010, p. 3). It is widely believed that whilst law has got simpler how to comply with that law (due to the supporting regulations) has got increasingly complex (Cullen, 1996, p 9 and Vermico, 2009).

The asbestos risk assessment approach

Part of this reversal is due to the influence of European legislation. Once enacted, a member state has no choice but to introduce an EU directive into domestic legislation. The Control of Asbestos Regulations (CAR) 2012 was introduced as a direct response to the Considered Opinion. The HSE were effectively informed that the risk based approach that they had taken when introducing CAR 2006 was not in keeping with the letter of the European Asbestos Worker Protection Directive (AWPD). Consequently they were instructed to change it.

In addition EU law is by tradition more prescriptive. In Lord Cullen’s speech to the Royal Academy of Engineering (1996), he says:

When one looks at the six pack of regulations it is clear that they are more prescriptive than the earlier regulations under the 1974 Act and certainly more prescriptive than Robens would have envisaged.


… their language seems to go too far down the road of telling the duty holder exactly what to do.

He gives an example taken from the Workplace (Health, Safety and Welfare) Regulations 1992 where approximately 80 words are used to specify the seating arrangements that are required on a site.

For many, many years the UK asbestos industry has used wetting techniques to damped down the material before removal – this prevents the fibres from being released into the air and therefore breathed in. This is so embedded now that we can not envisage a job done in any other way. However in Holland, fully compliant with the AWPD, they still remove asbestos dry and damp removal is a revelation. I believe this is a direct result of complying with prescriptive regulation rather than aiming for a goal – ZERO worker exposure.

The following figures were taken from the HSE’s European Comparison report (2011). Whilst accident rates have fallen, we can see the fatal accident rates remained largely flat in the 8 years following the introduction of the Six Pack.

Standardised incidence rates

Standardised incidence rates (per 100 000 workers) of fatal injuries at work in GB and the EU, 1998-2007, and GB 2008 estimated incidence rate (Eurostat).

The Six Pack was introduced in 1999, which was immediately followed in the UK by a sharp rise in in the fatal accident rate. The Revitalising Health and Safety initiative was introduced by the HSE in 2000 to tackle the stagnation in the UK accident figures (HSE, 2000).

These statistics suggests that the increase in the prescriptive nature of the legislation was incompatible with the goal based regulation of the UK. Cullen suggest that the increase prescriptive nature of the European Union legislation is contrary to the systems generated by HSWA 1974 (Cullen, 1996, p. 6). The Revitalising Health and Safety strategy could be seen as extra support for the British companies, effectively as a patch to rectify the effects of the Six Pack.

The US has a similar proscriptive approach to H&S. In fact going further to pull the teeth of the regulator. The Voluntary Protection Programs (VPP) introduced in the mid 80’s. VPP is a process whereby companies can introduce certain controls and systems including a cooperative agreement between management and workers, an active occupational health and safety management plan and to pass an OSHA audit every three years. In return they are free from unannounced visits, effectively un-policed self-regulation.

James Pomeroy wrote in his SHP article International Safety Systems – Workin’ USA, (2010) that Mr. Michaels returned this damning assessment on the OSHA:

OSHA is constrained by both budget and legal authority. The ratio of workplaces to inspectors is more than twice what it was when the organisation was set up. Most OSHA standards are ancient and inadequate, and the organisation lacks the resources, or political clout to issue an adequate set of new ones. Many injuries and fatalities occur in the absence of violations of existing standards. Consequently, changes in the number and type of inspections are unlikely to have more than a minor impact on OSHA’s mission.

The US model, so far as they can be compared to the United Kingdom has produced starkly inferior accident figures. James Pomeroy (2010) compares the fatal and non fatal accident rates in the USA with the UK. In 2007 the US reported figures of 3.8 fatalities per 100,000 employees. This compares with 0.8 in the UK. In addition the non-fatal accidents were reported as six times greater. Indeed the fatality rate of 3.8 is worse than the figures reported by Poland and Bulgaria in 2008 (European Comparisons Report, 2011).

With so many similarities to the discredited Factories Act, taking lessons and elements from the US system is in effect drawing from the UK’s own past.

But – we can’t escape the fact that many of Robens’ assumptions have been weakened. The rigid hierarchical management structure and the strong influence of the unions has gone. The UK governments control over its own domestic H&S legislation is no longer absolute. Even the concept of who is a worker and who is management has changed. But the central core of the proposal, those that create the hazard are best placed to understand and control it, remains a powerful argument.

How therefore do we improve? Other than the US and EU model of prescriptive legislation, there is another alternative approach to the UK’s – the Canadian Resposibilization.

The Canadian Criminal Code states that individuals who undertake, or have authority, to direct how another person does work have a legal duty to prevent bodily harm to others (Gray, 2009, p. 327). This key shift in emphasis makes individual employees responsible for their own H&S.

Ontario has introduced a H&S ticketing regime (similar to parking tickets), these are directed in the main at workers and supervisors found not to be taking personal responsibility for their own H&S (Gray, 2009, p. 330).

The system has flaws and has been criticised as unfairly targeting the worker. The tickets available to the inspector are predominately aimed at the operative and the Supervisor (Gray, 2009, p. 331). However it quite clearly re-enforces the tenet that the employee has a responsibility to act safely and it is not just the management’s problem.

This, if used alongside the existing UK system of management, would adjust Robens proposal that safety was a function of management and only required the cooperation of employees. Employees wouldn’t just need to cooperate with employers, but help enforce good safety.


The main problem that Robens identified was that hazards were changing too rapidly for government to regulate. His solution was essentially simple; give the goal, create a safe place of work, to the individuals who understood the hazard the most, give them help to do this and police the system to ensure that it was done. He effectively predicted the shift in management theory, allowing decisions to be made closer to where they would have effect.

However he did not appreciate that the change that he was witnessing was only the beginning. Nor did he realise that his assumption that a supervisor was a worker and not management would be questioned.

In addition, Robens could not have predicted the influence European legislation would have on the future UK legislative framework. Whilst the law, is simpler at its core, compliance is increasingly complex. With the umbrella responsibilities of HASWA 1974 looming over companies, we get a system that is trying to be both goal based and complex.

To tackle the dramatically changed landscape, Robens needs to be strengthened at the same time as evolving.

Where regulation cannot be further simplified due to the influence of Europe, the regulators need to return to the collaborative and supportive vision Robens had originally. This will assist companies to comply with legislation.

The largest influence on H&S is management. However, the belief that an employee only has to cooperate is unhelpful. H&S management should recognise flatter company structures and supervisors as the first rung in management. This would involve taking lessons learned in Canada with the Responsibilization strategy and blending it with Robens. The ticketing system could be used to bring about a shift in the view that H&S is mainly the responsibility of senior management. Employees and especially frontline supervisors would recognise that if senior management create an unsafe environment, cooperating with this, is in effect condoning the procedure.

The flaws of the Canadian system, that it unfairly targets the worker, would be removed if the fines attached to the employee tickets were comparatively low and the fines attached to the employer ticket high. The existing system of enforcement notices available to the HSE would ensure that the focus remains on management.

The duties enshrined in the Health and Safety at Work Act 1974 should remain. These ensure that Robens’ core statement that H&S is principally a function of management continue to be our focus. The addition of the ticketing regime would expand the duty holders all the way through the organisation, ensuring the policy makers remain connected with the policy doers.

Find out how we can help you with asbestos waste management – call us on 0845 226 4318


Lord Cullen. (1996). The Development of Safety Legislation. Paper presented at the 1996 Royal Academy of Engineering and Royal Society of Edinburgh Lecture

Dalton, AJP. (1998). Safety, Health and Environmental Hazards at the Workplace. London: Cassell.

European Comparisons. (2011). Retrieved from the HSE website:

Gray, G.C. (2009). The responsibilization strategy of Health and Safety – Neo-liberalism and the reconfiguration of individual responsibility for risk. British Journal of Criminology, 49, 326–342.

HSE (2000). Revitalising Health and Safety Strategy Statement. London: Department of the Environment, Transport and the Regions.

Lowe, J. (1993). Manufacturing reform and the Changing Role of the Production Supervisor: The Case of the Automobile Industry. Journal of Management Studies, 30 (5), 739-758.

Pomeroy, J. (2010, March). International Safety Systems – Workin’ USA. Retrieved 13 March 2012.

Safety and Health at Work (1972a). Volume 1. Report of the Committee 1970–72. Chairman, Lord Robens. Cmnd. 5034. London: HMSO.

Vermico, P. (2009, July). Time to Act?. Retrieved 13 March 2012.

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