The statistics don’t lie
Whenever we think of health and safety, the inevitable image is of the jobsworth with a clipboard telling you what you can and cannot do. Let’s be honest, it doesn’t get good press! But there is a sound argument that the Health and Safety at Work Act 1974 (HASWA) has done more to revolutionise how we go about our lives, and our working lives in particular, than any other piece of legislation from the past 50 years.
A brief bit of history. With the images and tales told of the workhouses and of working conditions in general, it is hard to believe that the very first piece of health and safety legislation dates back to the early nineteenth century and the Factory Act 1802. Throughout the nineteenth century, workers’ existences were, to quote the seventeenth century philosopher Thomas Hobbes, “nasty, brutish and short”.
The 1802 act was introduced by Sir Robert Peel in response to an outbreak of malignant fever at one of his cotton mills. The act itself was fairly limited in its scope as it only affected cotton mills and factories, requiring them to be properly ventilated and set basic requirements for cleanliness. In effect all this meant was opening windows and ensuring that premises were cleaned a minimum of twice a year. The 1802 act also granted apprentices a basic education, included a clothing provision and set limits on daily working hours (12 per day).
Even with the good intentions of the 1802 act, it was not effectively enforced as it lacked an independent body to make sure these minimum standards were being met, and instead relied on the good will of the mill and factory owners. In spite of this, we can see the first tentative steps towards what we take for granted today.
The Factories Act 1833 introduced, for the first time, the idea of a government appointed inspectorate. This was done in order to give the legislation more teeth, but again it appeared to have a relatively limited impact as the inspectorate was only a four-man team and there were over 4,000 mills and factories. The act was easily evaded by unscrupulous mill or factory owners.
The common law took a turn toward employee rights in the workplace with the 1837 case of Priestly v Fowler, which 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 legal protection to workers for accidents caused by their employers’ negligence. This 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”.
The Factory and Workshop Act 1878 consolidated all the previous acts into one, and also placed working hour limits on child and female labour: no child under ten was permitted to work, and women were permitted to work a maximum of 56 hours a week.
All previous legislation relating to factories and workshops was consolidated by the Factories and Workshop Act 1901, which also raised the minimum working age to 12, and for the first time legislated at national level for employers to provide a means of escape for employees during fires. Parliament provided further consolidating legislation through the Factories Act 1937, which consolidated all factory and workshop related legislation between 1901 and 1929, and perhaps this was the first attempt at a more comprehensive and condensed legislative code on health and safety in all factories.
As you can see, the overwhelming majority of health and safety legislation focussed on areas of manual labour, with reasonable justification.
In 1947 through the Gowers Committee — which looked into health and safety away from its traditional focus — there was perhaps the first recognition of the need to extend health and safety legislation to non-industrial spheres of employment such as offices and shops.
Among its most important recommendations were for 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. It was not until the Offices, Shops and Railway Premises Act 1963 (now superseded by the Workplace (Health, Safety and Welfare) Regulations 1992) that non-industrial workers had some form of protection under the law, extending safety provision to a further eight million workers.
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Historically the legislative approach has been somewhat piecemeal and gradual, but the more that we see health and safety legislation develop, the more we see it expand into wider spheres of industry.
In addition to this, we can also see how the approach to health and safety develops.
This perhaps is best demonstrated in the case of Edwards v National Coal Board (1949) which introduced the concept of ‘reasonable practicability’. This is the idea that employers must balance the time and expense necessary to implement safety measures against the potential effect of taking such measures.
This effectively implied the need for employers to undertake risk assessments within the workplace environment in order to recognise potential risks and to balance the level of obligation upon different types of employer. While not excusing impecuniosity, it made allowances for small employers who did not have the means to implement sometimes expensive safety measures, while making implied demands upon larger employers who had the financial means to do so.
Although all of this legislation had some impact upon working conditions, it still relied upon a ‘voluntarist’ approach from employers to implement it and effectively left them to their own devices, save for a few state regulations such as machine guards in factories.
While the highest risk industries were regulated, many were not and were at the mercy of employers voluntarily taking safety matters seriously. There were numerous inspectorates with too few inspectors responsible for enforcing standards and a large number of statutes with no overarching framework, which often confused employers about what they were required to do.
The shortcomings of this approach were all too apparent. By the end of the 1960s, around 1,000 people per year died as a result of workplace accidents, and by 1970 there were still five million workers without any kind of safeguards under the law. Something needed to be done.
In 1970, Alfred Robens (or Baron Robens of Woldingham as he was officially known) was appointed to investigate and propose a solution to the issue of improving workplace health and safety. In 1972 he published his report, and what he proposed was radical.
He proposed to abolish the myriad of inspectorates and consolidate it down into one, overarching inspectorate with control over all areas of health and safety regulation. His report also encouraged the replacement of the prescriptive, detailed approach of before with a more goal-orientated, generalised duty to reduce risks “as far as reasonably practicable”, promoted greater self-responsibility and considered the statutory approval of voluntary standards an important regulatory tool.
The report learned valuable lessons from Sweden’s Workers’ Protection Act 1949 which provided for the appointment of safety representatives and joint safety committees. The implementation of safety delegates and safety committees at workshop level seem to offer a workable system of compulsory joint consultation with voluntary cooperation super-imposed. This principle of workers’ integration into the process of safety management was part of the self-regulating approach the report championed. As a result of the Robens report, HASWA was enacted in 1974 and implemented almost all of Robens’ recommendations.
The effect of HASWA can be seen clearly from the statistics. Sometimes they say that statistics do not tell the whole story, but in this instance they appear to paint a pretty clear, lucid picture.
In 1974, there were 651 fatal injuries and 336,722 non-fatal workplace injuries reported. In 2015/16 there were 144 fatal injuries and 72,202 non-fatal workplace injuries reported. This represents a fall of 78% in fatal workplace injuries, and a 79% fall in non-fatal injuries.
These statistics go some way to demonstrating the efficacy of the new approach. The legislation has saved hundreds, possibly thousands, of lives through avoidable workplace accidents, and improved working conditions for millions more. Secondary legislation arising from HASWA such as The Health and Safety (Display Screen Equipment) Regulations 1992 (amended 2002) provide office workers with guidelines to guard against less obvious risks arising from office work such as musculoskeletal disorders (back pain, upper limb pain, etc). Similar regulations exist for control of chemicals, provision of work equipment as well as other areas and creates a relatively easy, less prescriptive regime for employers to follow.
We have all heard of overzealous officials making decisions in the name of health and safety (anyone remember the ban on playing conkers or the ban on Christmas lights in the office?), and this has given health and safety a bad name.
But the next time someone rolls their eyes at the mere mention of ‘elf and safety’, we would do well to remind ourselves of the successes of HASWA over the last 43 years. By simplifying and consolidating the regulatory regime, and changing the approach to health and safety, it has done more to revolutionise the way we work than almost any other piece of legislation.
Mark O’Neill is a law student at the Open University.