There is always a conflict between the needs of the employer to push for increased output and efficiency and the needs of the employee to be protected from the hazards of the workplace. In the mid-nineteenth century these tensions centred almost entirely on the long hours and heavy physical demands of the factory system. In the opening years of the twenty-first century the tensions are more varied and more subtle, but concern about them remains as great, being expressed by employers, employees, trade unions, government agencies and campaign groups. As international competitive pressures become greater and employers respond by giving employees incentives to work harder and faster there is an inevitable temptation to cut corners with safety and a greater tendency for employees to suffer from stress-related illnesses.
Increasingly, aspects of protection are being provided by statute, much new legislation having a European origin. The most recent major addition is the body of measures contained in the Working Time Regulations 1998 which aim to reduce the number of hours we work each week, while also guaranteeing everyone a minimum period of paid holiday each year. In addition some aspects result from the initiatives of managements, employees and their representatives. No matter what the source of the initiative or the nature of the concern, the human resource manager is often the focus of whatever action has to be taken.
1. HRM AND HEALTH, SAFETY AND WELFARE
The development of health, safety and welfare provision is to a large extent interrelated with the development of human resource management itself. As mentioned in Chapter 1, one of the early influences on the development of the profession was the growth of industrial welfare workers at the beginning of the twentieth century. Enlightened employers gradually began to improve working conditions for employees and the industrial welfare worker was often concerned in implementing these changes. Much of this work was carried out voluntarily by employers, although not necessarily from altruistic motives alone. Another influence was that of the ‘human relations school’, in particular the work of Elton Mayo at the Hawthorne plant of the Western Electric Company. Here there was an employee counselling programme, which operated from 1936 to 1955. It was found that such a programme was beneficial for both the mental health of the employees and their work.
More recently the state has stepped in by requiring employers to take reasonable steps to protect the health and safety of employees and by providing an inspectorate charged with helping to ensure that they do so in practice. Some aspects of welfare provision, particularly in respect of safety, such as limitations on the hours of work of children, were enshrined in the law from as early as the 1840s. But it is only since the passing of the Health and Safety Act 1974 that a comprehensive regime covering all workplaces has been in place. During the 1980s and 1990s health and safety at work increasingly became subject to European Union directives and regulations, the result being greater complexity and more extensive obligations for employers. Except in workplaces with particularly high safety risks where a specialised function has been established, the human resource department has taken on the role of advising managers on the organisation’s legal obligations.
The importance of health, safety and welfare from the employees’ point of view is clear because their lives and futures are at risk. Health and safety has thus been given increasing emphasis by the trade unions in recent years and has been covered more extensively in the media. Two major developments in recent years are discernible:
- A shift in emphasis from concern about the prevention of physical injury towards a focus on mental health and work-related stress.
- The development of the view that employers should take steps not just to prevent injury and unnecessary stress, but actively to seek to promote healthy lifestyles in a more general sense.
A convincing business case for addressing these issues has been articulated in the human resource management press, while the Health and Safety Executive campaigns vigorously to raise awareness of its validity among employers. The business case is based on three propositions:
- Illness and injury which is work related leads to avoidable absence.
- Serious injury and illness can lead to litigation and substantial compensation being paid out by employing organisations.
- A poor reputation for safety and welfare makes it harder for an organisation to recruit, retain and motivate its staff.
The number of serious injuries sustained at work by UK employees fluctuates substantially each year. The level has dropped considerably since the 1970s with the fall in manufacturing employment, but the total number remains much higher than it should be. In the year to April 2006, for example, 212 people lost their lives in the UK as a result of accidents sustained at work, mostly as result of falls and motor vehicle accidents (HSC 2006). It is further estimated that around 5,000 people die each year from cancers caused by working conditions (mainly resulting from the inhalation of chemicals, fumes and dusts). In addition, over two million people are reported by the Health and Safety Executive to suffer from some form of work-related illness each year (HSE 2006). In 2004-5 35 million working days were lost in the UK due to injuries and illnesses sustained at work, a third of these being due to stress, depression or anxiety (HSC 2005). The total cost to employers runs to several billion pounds a year, including the costs associated with the early retirement of around 30,000 employees forced to give up work on grounds of ill health. If the number of incidents were reduced by only a small percentage, employers would thus save a considerable amount of money and trouble.
The reason that the numbers remain so high is the continual conflict between health, safety and welfare considerations and other business priorities. Leach (1995) reports a line manager who had previously been a safety officer as saying: ‘I think in general managers don’t see [health and safety issues] [being] as important as . . . other issues [on which they would take disciplinary action]. I mean you do take short cuts, I do myself. I mean I am not practising a lot of what I used to preach, there’s no doubt about it. Managers know it is a part of their job, but I don’t think they personally see [health and safety offences] as an offence as such.’ You will find further information and discussion exercises about encouraging higher standards of health and safety management on our companion website, www.pearsoned.co.uk/torrington.
2. HEALTH AND SAFETY LAW
In the area of health and safety legislative intervention has existed continuously for well over a century, longer than for any other matter we consider. Prior to 1974 the principal statutes were the Factories Act 1961, the Offices, Shops and Railway Premises Act 1963 and the Fire Precautions Act 1971. These three Acts, along with others relating to specific industries, were all brought up to date by the Health and Safety at Work etc. Act 1974 which remains the major statute governing the law in this area. In addition there are a host of health and safety regulations primarily extending the Health and Safety Act to expand specific areas of the legislation, the most significant of which are the Control of Substances Hazardous to Health (COSHH) Regulations 1988 and the series of ‘daughter directives’ issued by the EU concerning matters such as the manual handling of heavy loads, use of visual display units (VDUs) and use of carcinogens and biological agents. In addition there are specific sets of regulations covering matters such as violence at work, fire precautions, ventilation, the provision of sanitary facilities, safety signs and noise at work. In 1998 a major new piece of legislation came into UK law in the form of the Working Time Regulations which also have an EU origin. Many of the regulations are supplemented by Health and Safety Commission codes of practice which are not themselves legally enforceable, but which define the standard against which the authorities judge employers’ actions.
The reason that EU directives have increased so rapidly in this area is that the Single European Act 1987 added another article to the Treaty of Rome. This allowed health and safety directives to be accepted by a qualified majority vote as a move towards harmonising EU health and safety legislation.
Health and safety law can be neatly divided into two halves, representing its criminal and civil spheres. The first is based in statute and is policed both by the Health and Safety Executive and by local authority inspectorates. The second relies on the common law and allows individuals who have suffered injury as a result of their work to seek damages against their employers. The former is intended to be preventative, while the latter aims to compensate individuals who become ill as a result of their work.
2.1. Criminal law
Health and safety inspectors potentially wield a great deal of power, but their approach is to give advice and to issue warnings except where they judge that there is a high risk of personal injury. They visit premises without giving notice beforehand in order to inspect equipment and make sure that the appropriate monitoring procedures are in place. They have a general right to enter premises, to collect whatever information they require and to remove samples or pieces of equipment for analysis.
Where they are unhappy with what they find, inspectors issue improvement notices setting out recommended improvements and requiring these to be put in place by a set date. In the case of more serious lapses, where substantial risk to health is identified, the inspectors issue prohibition notices which prevent employers from using particular pieces of equipment until better safety arrangements are established. Breach of one of these statutory notices is a criminal offence, as is giving false information to an inspector. Over a thousand prosecutions are brought each year for non-compliance with a Health and Safety Executive Order, leading to fines of up to £20,000.
Prosecutions are also brought after injuries have been sustained where it can be shown that management knew of risks and had not acted to deal with them. Where fatalities result and an employer is found guilty of committing corporate manslaughter, fines of several hundred thousand pounds are levied. Moreover, in some cases custodial sentences have been given to controlling directors held to have been individually liable. A well-publicised case occurred in 1994 when the manager of an adventure company based at Lyme Bay, Dorset was given a three-year prison sentence and fined £60,000 following the deaths of four teenagers. In recent years the government has come under pressure following rail accidents to create a new more clearly drawn offence of ‘corporate killing’. This would extend criminal responsibility beyond directors to anyone acting in ‘a management role’ and could lead to their disqualification from such work.
Lack of resources has led the Health and Safety Executive to place less stress on ‘negative’ enforcement and more on ‘positive’ encouragement. The focus in the last few years has been on developing partnership approaches and giving advice to employers, the aim being to recruit them to the cause of effective safety management. The most recent initiatives involve using the promise of rewards as well as the threat of punishments to help encourage compliance (IRS 2005a). But this ‘light touch’ approach has been criticised by unions and safety specialists who argue that it is only ‘the threat of getting caught’ that acts as a genuine deterrent to employers and that this requires more inspections and more investigations (Boyd 2003; IRS 2005b).
The Health and Safety at Work etc. Act 1974
This Act is the source of most health and safety law in the UK, under which more detailed sets of regulations are periodically issued. Its main purposes are as follows:
- to secure the health, safety and welfare of people at work;
- to protect the public from risks arising from workplace activities;
- to control the use and storage of dangerous substances;
- to control potentially dangerous environmental emissions.
The Act places all employers under a general duty ‘to ensure, as far as is reasonably practicable, the health, safety and welfare at work’ of all workers. In addition there are specific requirements to maintain plant and equipment, to provide safe systems of working, to provide a safe and healthy working environment, to consult with trade union safety representatives, to maintain an accident reporting book and to post on a noticeboard a copy of the main provisions contained in the 1974 Act. Where hazardous substances or equipment are in use, there is a further requirement to train people properly in their use and to have safe arrangements for their ‘handling, transport and storage’. Where more than five workers are employed, employers are expected to have a written health and safety policy which must be kept up to date and made available to all staff.
In the case law, judges have interpreted the phrase ‘as far as is reasonably practicable’ relatively narrowly. Employers are expected to undertake formal risk assessments and to compare the level of risk against the costs involved in making a workplace safer. Wherever there is risk identified improvements must be made unless it would be unreasonable, for example on grounds of excessive cost, to expect an employer to do so.
The management of the organisation carries the prime responsibility for implementing the policy it has laid down; it also has a responsibility under the Act for operating the plant and equipment in the premises safely and meeting all the Act’s requirements whether these are specified in the policy statement or not. A duty is also placed on employees while they are at work to take reasonable care for the safety of themselves and others, as well as their health, which appears a more difficult type of responsibility for the individual to exercise. The employee is, therefore, legally bound to comply with the safety rules and instructions that the employer promulgates and can be prosecuted for failing to do so. Employers are also fully empowered to dismiss on the grounds of misconduct employees who refuse to obey safety rules, especially if the possibility of such a dismissal is explicit in the disciplinary procedure.
Under the 1974 Act recognised trade unions have the right to appoint safety representatives who have specific duties and with whom managers are obliged to consult. Their role is to investigate complaints from staff about health and safety matters, to carry out their own inspections, to liaise with HSE inspectors and to attend meetings of health and safety committees. Managers are not permitted to prevent a representative from carrying out an inspection, but may be present during the process. Safety representatives are legally entitled to reasonable paid time off work to carry out their duties and to undertake necessary training, as well as to have facilities such as a noticeboard, telephone access, secure filing and photocopying. In 1993 new legislation gave safety representatives protection from victimisation, while case law has determined that managers cannot decide who is appointed to the role or for how long they remain in post.
The First Aid Regulations 1981
These regulations place employers under a general duty to provide adequate first aid equipment and facilities. The accompanying code of practice sets out what should be kept in a first aid box and what supplementary equipment is required in different types of workplace. In low-risk environments it is recommended that there should be one person with first aid training for every 50-100 employees, rather more being needed in high-risk workplaces such as construction sites and chemical plants.
The Control of Substances Hazardous to Health (COSHH) Regulations 1988
These comprise 19 regulations and four approved codes of practice. The purpose of the legislation is to protect all employees who work with any substances hazardous to their health, by placing a requirement on their employer regarding the way in which and extent to which such substances are handled, used and controlled. The regulations apply to all workplaces, irrespective of size and nature of work. They therefore apply equally to a hotel as to a chemical plant, and in firms of a handful of employees as well as major PLCs. The regulations place a responsibility for good environmental hygiene not only on the employer, but on employees too. All substances are included, except for asbestos, lead, materials producing ionising radiations and substances underground, all of which have their own legislation (see Riddell 1989). The regulations require employers to focus on five major aspects of occupation in respect of hazardous substances. These are:
- Assessing the risk of substances used, and identifying what precautions are needed. This initial assessment of substances already in use, and those that are intended for use, is a major undertaking in terms of both the number of substances used and the competency of the assessor. Cherrie and Faulkner (1989) report that one employer in their survey used over 25,000 different substances!
- Introducing appropriate measures to control or prevent the risk. These may include: removing the substance, by changing the processes used, substituting the substance or controlling the substance where this is practical. Examples include totally or partially enclosing the process, increasing ventilation and instituting safer systems of work and handling procedures.
- Ensuring that control measures are used, that procedures are observed and that equipment involved is regularly maintained. Where necessary, exposure of employees to the substance should be monitored. This particularly applies where there could be serious health hazards were the measures to fail or be suboptimal. Records of monitoring should be made and retained.
- Health surveillance. Where there is a known adverse effect of a particular substance, regular surveillance of the employees involved can identify problems at an early stage. When this is carried out, records should be kept and these should be accessible to employees.
- Employees need to be informed and trained regarding the risks arising from their work and the precautions that they need to take.
The Management of Health and Safety at Work Regulations 1992
These regulations implemented the EU’s Framework and Temporary Workers Directives. The Framework Directive is an umbrella directive, in a similar way that the
Health and Safety at Work Act is an umbrella act. Additional rules known as ‘daughter directives’ covering specific areas have been issued within the framework of this directive. The following examples apply to workplaces generally. Others apply to specific industries such as construction, mining and chemicals.
- The Workplace (Health, Safety and Welfare) Regulations 1992 set out minimum design requirements, including provision of rest and no-smoking areas.
- The Provision and Use of Work Equipment Regulations 1992 set minimum standards for the safe use of machines and equipment.
- The Personal Protective Equipment at Work Regulations 1992 require employers to provide appropriate protective equipment, and workers to use this correctly.
- The Manual Handling Operations Regulations 1992 require employers to reduce the risk of injury by providing lifting equipment where appropriate and training in lifting.
- The Health and Safety (Display Screen Equipment) Regulations 1992 require employers to provide free eye tests, glasses where appropriate, regular breaks, appropriate training and organisation of equipment to reduce strain.
- The Protection of Pregnant Workers Directive 1994 was implemented in 1994 via a range of UK Acts and regulations. The major measures are now incorporated into the Employment Relations Act 1999. The most important element is that requiring employers to offer alternative work to a pregnant employee or to one who has recently given birth where there are identifiable health and safety risks.
The Health and Safety (Consultation with Employees) Regulations 1996
These regulations require employers to consult collectively with their employees about health and safety matters irrespective of whether a trade union is recognised. Consultation is defined as discussing issues with employee representatives, listening to their views and taking these into account when decisions are being made which have health and safety implications. Where trade unions are recognised the regulations require that their representatives are consulted. In situations where there are no recognised unions the employer must consult with employees as individuals directly or must make arrangements for employees to elect health and safety representatives. Elected representatives have the same rights to paid time off for training and to information disclosure as trade union appointed safety representatives.
The Working Time Regulations 1998
These regulations comprise the most significant recent addition to UK health and safety law. Like the other legislative instruments described above, they are enforced by officers of the Health and Safety Executive, but complaints can also be taken directly to employment tribunals by individuals whose employers deny them the various rights set out in the regulations.
The law on working time originates in the EU’s Working Time Directive 1993. This was agreed by the Council of Ministers via qualified majority voting, with the UK government voting against. Moves were subsequently made to challenge the legality of its imposition in the UK on the grounds that it was essentially a social issue, and thus inapplicable in the UK, and not about health and safety at all. Predictably the government’s case was turned down by the European Court of Justice, leading to the rather hurried introduction of the new regulations in October 1998.
In 2006 the basic entitlements apply to all workers whether or not they work under a contract of employment. They are:
- a working week limited to a maximum of 48 hours;
- four weeks’ paid annual leave per year (in addition to bank holidays);
- a limitation on night working to eight hours in any one 24-hour period;
- 11 hours’ rest in any one 24-hour period;
- an uninterrupted break of 24 hours in any one seven-day period;
- a 20-minute rest break in any shift of six hours or more;
- regular free health assessments to establish fitness for night working.
There are more restrictive, additional regulations relating to those aged between 16 and 18, while other groups such as transport workers, junior doctors and people who determine their own working time are excluded from the 48-hour week. Further complexity derives from the way the regulations permit more than 48 hours to be worked in some weeks and more than eight hours on some nights provided that the average number of hours worked over a 17-week period does not breach these limits. Individuals can agree with their employers in writing that they are excluded from the right to the 48-hour maximum working week, but all must be permitted to opt back into the scheme with reasonable notice if they so wish.
The regulations set out the basic rights, but they also allow for locally agreed variation on detailed matters through the mechanism of workplace agreements. Where trade unions are recognised, these can be drawn up and agreed through existing collective bargaining machinery. Where unions are not recognised a workplace agreement can be established in one of two ways:
- The employer can draw up the text before asking employees to sign their approval. Once over half of the employees’ signatures in a workplace are obtained, the agreement becomes valid.
- The employer can arrange for representatives of employees to be elected to negotiate on behalf of everyone. An existing health and safety committee, provided it is properly elected, can fulfil this function.
It is likely that the EU will seek to tighten these regulations in future years. It is generally agreed that they have had an insufficient impact on the UK’s ‘long hours culture’ in their first years of operation because so many people either opt out or remain unaware of their rights under the regulations. Further restrictions will thus be necessary if the directive’s health and safety objectives are to be met. So far, however, the government has successfully resisted attempts at the EU level to end opt-out arrangements and many of the other exemptions that mean some professions are not covered by parts of the regulations. You will find further information about these debates and some discussion exercises on our companion website, www.pearsoned.co.uk/torrington.
Bans on smoking in most workplaces have now been implemented across the whole of the UK. This followed an acceptance on the part of ministers that organisations such as the British Medical Association (2002) were correct in asserting that at least 1,000 people in the UK die each year as a result of passive smoking (i.e. breathing in other people’s cigarette smoke), many of whom have contracted lung cancer while working in bars and clubs where smoking is highly prevalent. Many thousands more suffer from respiratory conditions caused or made worse by passive smoking at work. In England a
ban on smoking in enclosed public spaces was introduced in the summer of 2007. Substantial fines can be levied by the health and safety authorities if employers fail to comply with the regulations by taking the appropriate preventative measures.
2.2. Civil law
While distinct in origin and nature from the criminal sanctions, civil cases relating to health and safety are often brought alongside criminal proceedings in connection with the same incident. When someone is seriously injured or suffers ill health as a direct result of their work the health and safety authorities will bring a criminal prosecution, while the injured party will sue for damages in the civil courts. Most claims are brought under the law of negligence, the injured party alleging that their employer acted negligently in allowing him or her to become injured. It is also possible in certain circumstances to sue for damages under the law of contract by claiming that an employer is guilty of breaching its duty of care (see Chapter 6) or of breaching its statutory duties.
Whatever the nature of the claim, the courts have to be satisfied that the employer failed to act reasonably and that the injury or illness was sustained ‘during the course of employment’. Central here, as in the criminal law, are the notions of foreseeability and risk assessment. Cases often hinge on what the employer knew at the time the injury was sustained and whether or not reasonable precautions in the form of training or the provision of equipment had been taken. Employers can thus defend themselves effectively by satisfying the court that little else could have been done by any reasonable employer to prevent the accident from occurring. Importantly the principle of vicarious liability applies in this field, as in sexual harassment (see Chapter 23). This means that the employer is legally liable for the negligent actions of employees when they are at work. If one employee causes another to become injured, the claim is therefore brought against the employer and not the fellow employee who was responsible.
There are a number of defences open to employers which can result in no award being made or in reduced damages. These include situations in which an accident was not foreseeable (for example if someone was struck by a piece of masonry during exceptionally heavy winds), where the employee voluntarily assumed a risk despite being warned of possible danger, and where an injury which originated outside the workplace was worsened as a result of working. Most significant of all are situations where the employee is found to have contributed to their own injury in some way. This can happen where illnesses derive from lapses of concentration, professional misjudgement or simply stupid behaviour in the face of dangerous conditions. An example is the extraordinary case of Jones v. Lionite Specialities (Cardiff) Ltd (1961) where an employee fell into a tank of noxious liquid and died. The court held that he was wholly to blame as he had put himself at risk in order to take big whiffs of the liquid’s vapour ‘to which he had taken a liking’.
Source: Torrington Derek, Hall Laura, Taylor Stephen (2008), Human Resource Management, Ft Pr; 7th edition.
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