HEALTH & SAFETY


50 YEARS OF WORKPLACE REGULATION


Fiſty years on from its inception, Bill Dunkerley, Health,Safety & Regulatory Associate Partner at Pannone Corporate, examines the regulatory and enforcement role of the Health & Safety Executive and looks ahead to where its future focus may lie.


This year marks the 50th


anniversary of the introduction of the Health and Safety at Work etc Act


(HSWA) 1974.


Although the key provisions of the Act remain as first enacted, the Health and Safety Executive (HSE), being the primary regulator of workplace health and safety, has not been static in its approach.


In addition to new working methodologies, many of which were implemented in response to the 2020 pandemic, the HSE has modified its regulatory approach. At one time, it may have been seen as an advisory agency, over the years this role appears to have fallen somewhat by the wayside as it has embraced its reactive enforcement responsibilities. However, even its penchant for enforcement action may now be on the decline.


The HSE’s most recent Annual Report identifies that during 2022/23 the regulator concluded 216 prosecutions and issued over 8,000 enforcement notices. By contrast, its Annual Report for 2021/22 reveals that 290 prosecutions were concluded, but only around 6,900 enforcement notices were issued. This is not a recent trend and reflects a general downwards trajectory in the number of prosecutions initiated, from around 600 prosecutions annually a decade ago. Although the number of workplace injuries has also been on a downwards trajectory over the same period, it has not fallen at the same rate as prosecutions.


“During 2022/23 the HSE


concluded 216 prosecutions and issued over 8,000 enforcement notices.”


Whilst the issuing of notices may be a cheaper alternative to litigation, and may result in a more immediate outcome for the regulator, concerns have already started to be asked within the wider media as to whether the HSE retains sufficient teeth to be an effective regulator and so the question arises: what next for the HSE?


WHAT OBLIGATIONS DOES THE ACT IMPOSE? The HSWA provides the framework within which all


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subsequent workplace health and safety regulations have been introduced. The Act applies across sectors and establishes the core duties owed by employers, including those in the healthcare sector, to both their employees and third parties.


“We anticipate that the


next few years will see the commencement of initial


prosecutions in workplace stress and mental health.”


In respect of employees, the Act requires employers to ensure, so far as is reasonably practicable, their health, safety and welfare whilst at work. Employers must also ensure, so far as is reasonably practicable, that third parties and non- employees are not exposed to a risk to their health and safety as a result of the undertaking.


These obligations are in addition to those duties owed by healthcare providers to ensure the safety and quality of treatment provided to patients and service users under health and social care legislation.


The 1974 Act does not require the elimination of all risk, but rather that employers undertake a balancing exercise between, on the one hand, the likelihood of harm occurring, and the seriousness should it materialise, with the cost, time and effort involved in negating that risk to he lowest possible level.


WHAT DOES THE FUTURE HOLD?


Enforcement under the 1974 Act has historically proceeded following physical injuries, but the legislation is not written in such restrictive language and on the face of it is wide enough to include risks to mental health and wellbeing.


There is growing acknowledgment that health is equally important as safety and this is a trend which only looks set to continue over the coming years.


The HSE’s intentions in this regard are clear and, in its 2022- 2032 Strategy, the regulator states that its first objective is to, “reduce work-related ill health, with a specific focus on mental health and stress.”


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