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No Safety, Know Pain: Time to Celebrate the HASWA 1974

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About The Author

Mark O'Neill (Regular Writer)

Mark is a graduate of the Open University, where he recently graduated with a First Class Honours in his BSc (Hons) Open Degree. Mark is currently working full time for the Financial Ombudsman Service as an Adjudicator, while also undertaking an LLM in Sports Law in Practice at De Montford University with the aim of working as a solicitor specialising in sports law.

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The safety of the people shall be the highest law

Cicero

The inevitable image of health and safety in the modern age is of a ‘jobsworth’ in a high-visibility jacket clutching a clipboard telling disgruntled members of the public what they can and cannot do. Health and safety is very much seen as an inconvenience, a phenomenon attacked by the tabloids as an example of the state meddling where it should not.

It is difficult to deny that the Health and Safety at Work Act 1974 (HASWA 1974) has revolutionised how people go about their lives. Yet there is scope to argue that the diatribe it faces is unfair and unwarranted, particularly when – as this article does – the provisions of the HASWA 1974 are examined in light of, and compared with, historical health and safety legislation from over the past 200 years.

The History of Health and Safety Legislation

The Industrial Revolution

The very first piece of health and safety legislation originates from the early 19th Century in the shape of the Factory Act 1802 (FA 1802). Throughout this period of history, a worker’s existence was, in the words of philosopher Thomas Hobbes, “nasty, brutish and short”. Indeed, the FA 1802 itself was introduced by Sir Robert Peel as a response to an outbreak of malignant fever at one of his cotton mills.

The FA 1802 was fairly limited in its scope and application: it only affected cotton mills and factories and imposed basic requirements to ensure their proper ventilation and cleanliness. In effect, this amounted to opening windows and ensuring that premises were cleaned a minimum of twice a year. Often overlooked, however, is the FA 1802’s granting to apprentices of a basic education and clothing provisions, as well as the setting of a daily working hour limit of twelve per day.

Nonetheless, despite the good intentions that appeared to underpin its introduction, the FA 1802 was not effectively enforced: it lacked an independent body to enforce these minimum standards and instead relied on the goodwill of the mill and factory owners. Still, it represents the first tentative steps towards a basic focus upon working hour limits and workplace conditions that, arguably, are now taken for granted by many workers take for granted today.

Further progress appeared to come some 30 years later via the Factories Act 1833 (FA 1833), which introduced a government-appointed Inspectorate for the first time. However, it struggled to herald any meaningful progress on account of the Inspectorate having but a four-man team of inspectors who were tasked with regulating over 4,000 mills or factories across the country. Evasion of the FA 1833’s provisions was thus simple enough for unscrupulous mill and factory owners.

So it fell upon the common law to take a turn toward employee rights in the workplace: in Priestly v Fowler [1837] – a forerunner to the seminal case of Wilsons and Clyde Coal Co. v English [1938] – the courts established a common law duty of care of employers towards their employees. This principle was enshrined in legislation in the Employers Liability Act 1880, which gave workers legal protection to workers for accidents caused by their employers’ negligence until it was replaced by the Workman’s Compensation Act 1897, which introduced payments for workers in certain industries who were injured ‘out of, and in the course of, employment’.

And then followed a period of consolidation, with Parliament using three separate statutes over the course of 50 years to lay down a (limited) layer of protection for workers. First, the Factory and Workshop Act 1878 consolidated all prior legislation into one statute, as well as placing age and working hour limits on child and female labour. Then, shortly after the turn of the century, the Factories and Workshop Act 1901 raised the minimum working age from ten to twelve and legislated – for the first time – at a national level via a provision requiring employers to provide a means of escape for employees during fires. Finally, Parliament provided further consolidation in the form of the Factories Act 1937 in what was perhaps the first attempt at a comprehensive and condensed legislative code on health and safety in all factories.

The Birth of the Welfare State

In the early years of health and safety legislation, the overwhelming majority of the protection focused on areas of manual labour. Given the composition of the country’s workforce, this was with reasonable justification. However, following the aftermath of World War Two, Britain underwent huge social changes as the country was rebuilt under Clement Attlee’s Labour government. The Beveridge Report initiated the expansion of the welfare state and the creation of the NHS. The relationship between the state and the people was radically changed as the Attlee government focused on improving the conditions for the working classes as a reward for the sacrifices of the British people.  

A small but significant part of these widespread reforms came in the context of health and safety legislation, through the Gowers Committee Report into Health, Welfare and Safety in Non-Industrial Places of Employment of 1949. Chaired by Sir Ernest Gowers, the Committee examined the ways in which health and safety legislation could be improved and expanded to regulate a wider variety of industries, including non-industrial spheres of employment such as offices and shops.

Amongst its most important recommendations were the introduction of a requirement for employers to provide sanitary accommodation, washing facilities, heating, lighting and ventilation, fire escape systems, first aid and safeguards for dangerous machinery and chemicals in such workplaces where there was no previous legislative provision. These suggestions were eventually implemented via the Offices, Shops and Railway Premises Act 1963 (now superseded by Workplace (Health, Safety and Welfare) Regulations 1992): this saw non-industrial workers some form of protection under the law for the first time as safety provision was extended to a further 8 million workers.

It is clear, therefore, that the legislative approach to the widening of the scope of health and safety protection has been somewhat piecemeal and gradual. Nonetheless, over time, Parliament seemed increasingly prepared to recognise that protection should be accorded to wider and wider spheres of industry.

The Need for Something More

In addition to an enlarging scope, there is also a noticeable shift in the nature of the health and safety protection afforded by the law. This is best demonstrated by the case of Edwards v National Coal Board [1949] 1 KB 704, which introduced the concept of ‘reasonable practicability’: employers must balance the time and expense necessary to implement safety measures against the potential effect of taking such measures.

This heralded a new set of obligations of employers, in that it introduced a need for employers to undertake risk assessments within the workplace environment in order to recognise and guard against potential risks. The approach was impressively nuanced, as it ensured that the level of obligation upon different types of employer varied: whilst not excusing impecuniosity, it made allowances for small employers who did not have the means to implement sometimes expensive safety measures, whilst making implied demands upon larger employers who made the financial means to do so.

However, though this legislation had some positive impacts upon working conditions, its implementation still relied too heavily upon a ‘voluntarist’ approach from employers; largely, they were effectively left to their own devices. Indeed, while the industries of ‘highest risk’ were regulated, many were not and workers were thus left at the mercy of employers’ readiness to take safety matters seriously.

The shortcomings of this approach were all too apparent. There were numerous inspectorates with too few inspectors responsible for enforcing standards and a large number of statutes with no over-arching framework – which often confused employers about what they were required to do. Indeed, as Sirrs points out, by the start of the 1970s, around 1,000 people per year were dying as a result of workplace accidents, while the 1972 Robens Report noted there were still 5 million workers without any kind of safeguards under the law. Something needed to be done.

The Introduction of the HASWA 1974

In 1970, Baron Robens of Woldingham was appointed to investigate and propose a solution to the issue of improving workplace health and safety. In 1972 Robens published his report, which contained a set of radical proposals including the abolishment of the myriad of impotent inspectorates to facilitate their consolidation down into one, overarching inspectorate with control over all areas of health and safety regulation.

Robens also recommended the replacement of the current prescriptive, detailed approach with a more goal orientated, generalised duty to reduce risks ‘as far as reasonably practicable’. With the aim of encouraging greater self-responsibility, the report advocated for the statutory approval of voluntary standards an important regulatory tool.

While this could be viewed negatively, as it appears on the surface as calling for the replication of one of the more problematic elements of the early approach to health and safety, Robens argued that such a mass of law has an unfortunate and pervasive psychological effect. People became conditioned to think of health and safety at work as a deluge of detailed rules imposed by external agencies.

Indeed, the Report learned valuable lessons from Sweden’s Workers’ Protection Act 1949 which provided for the appointment of safety representatives and joint safety committees. This formed part of the self-regulation approach championed by the report: the implementation of safety delegates and safety committees at employee level was aimed at offering a system of compulsory joint consultation with voluntary cooperation to ensure workers integration into the process of safety management.

The HASWA 1974, which was duly enacted to implement almost all of Robens’ recommendations, represented a comprehensive and major overhaul of the health and safety law. Its positive effect can be seen clearly from statistical evidence: in 1974, there were 651 fatal injuries and 336,722 non-fatal workplace injuries reported, compared with 92 fatal injuries and 77,310 non-fatal workplace injuries reported in 2014/2015.

Representing a fall of 85% in fatal workplace injuries, and a 77% fall in non-fatal injuries, these statistics go some way to demonstrating the efficacy of the new approach heralded by the HASWA 1974. It has gone some way to saving hundreds, possibly thousands of lives through avoidable workplace accidents, and improved working conditions for millions more.

A European Influence?

As Parliament accepted the sovereignty of EU law when it enacted the European Communities Act 1972 (ECA 1972), it opened the door for a potential new approach to health and safety legislation. Indeed, in 1989, the EU enacted the Health and Safety “Framework Directive” (89/391/EEC) to establish the general principles of health and safety to be applied in all work activities throughout the EU, with each Member State was required to implement this Directive in their domestic law. And though the UK already had existing primary legislation (the HAWSA 1974) in place already, the Directives were more prescriptive and detailed and thus is was necessary to extend the law.

Nonetheless, as if to provide evidence of the extent of the misconceptions surrounding a desire for ‘unelected Brussels bureaucrats’ to ‘shape and change British laws’, the implementation of the Directive did to alter the country’s approach to health and safety in any meaningful way. Indeed, Parliament was able to carefully avoiding any disruption to the HASWA 1974 when it introduced six new sets of regulations (jocularly called the ‘six pack’) together with Approved Codes of Practice and Guidance Notes in 1992.  

The ‘six pack’ included amongst them, The Health and Safety (Display Screen Equipment) Regulations 1992 provided office workers with guidelines to guard against less obvious risks arising from office work such as musculoskeletal disorders (e.g. back pain, upper limb pain). This represented a legislative recognition (from both Brussels and London) that the prevalence of office based work means that recognition of how to correctly setup an employee’s desk can help improve their working conditions and their productivity at the same time. Similar regulations exist for the control of chemicals and provision of work equipment in other areas and has been widely viewed as creating a relatively easy, less prescriptive regime for employers to follow.

Though the historic vote on the 23rd June 2016 means that Britain looks set to leave the EU, it appears likely that Brexit will not lead to any great change in the country’s health and safety legislation. For one thing, the principles and thinking underlying the domestic legislation currently in place – namely, the 1972 Robens Report which led to the HASWA 1974 – originated before the enactment of the ECA 1972: there was already a commitment to health and safety in the workplace.

Indeed, since Priestly in 1837, there has been a general duty in the common law to ensure the health, safety and welfare of individuals. It could be argued that even where Brexit results in the stripping back of individual regulations, there would still be that general duty to fall back upon to provide an obligation on employers to demonstrate that they have done all that they can to fulfil their general duty of care towards their employees. In this day and age, it seems likely that the courts would expect a great deal of employers before that it satisfied.

Conclusion

The regime introduced by the HASWA 1974 of goal orientated, risk-based assessments allows for continual improvement and vigilance in the workplace, helping to prevent a certain amount of complacency from employers on a practical level. The more the system of health and safety ‘risk assesses’ itself, the more open the loop for feedback, and the more it can learn.

There have been many stories (often myths) in the media of overzealous officials making decisions in the name of health and safety which have contributed towards health and safety receiving an unsavoury label. This may be tough in the current climate for health and safety legislation to shake off, particularly given the extent to some misunderstand the premise of health and safety legislation.

However, this article has aimed to show how, by simplifying and consolidating the regulatory regime and changing the approach to health and safety, the HASWA 1974 has arguably done more to revolutionise the way the British public work, and indeed live, more than almost any other single piece of legislation.

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Tagged: Employment Law, European Union, Personal Injury, Regulators, Tort Law

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