Proportionality - a synoptic view

Laurence Ball-King GradIOSH discusses what is hindering proportionality in occupational safety and health. 

In the late 1960s the UK government asked Lord Robens to investigate the state of OSH and how it might be improved. His groundbreaking report in 1972 led to the Health and Safety at Work etc Act 1974 (HSWA), which introduced a novel, risk-based approach to safety. Risk-based approaches would later gain popularity around the world, including in Australia, New Zealand, Singapore and Canada.

The UK system also places duty holders at the heart of decision-making. It is they who must try to answer the essential question of ‘How safe is safe enough?’ – a conundrum that has seemingly lost none of its relevance since appearing in influential research in the 1960s. Now more commonly known as ‘proportionality’, it has risen to the top of the agenda through the series of government inquiries into OSH from 2010 onwards motivated by concerns that some decisions were disproportionate. The UK Health and Safety Executive (HSE) has also joined in, featuring this concept prominently in its publications and elevating proportionate decision-making to the headline goal of the UK’s risk assessment process.

But what does this cryptic term actually mean? Is it widely understood? And how well is it being achieved by duty holders? And if proportionality is not being achieved, what is hindering it?

Despite government reviews, significant problems remain in regard to risk assessment and decision-making as currently practised

These were some of the central questions addressed during a four-year research project at King’s College London, published in 2020 (see Resources, below). Through in-depth interviews, the study drew upon the knowledge of 34 senior risk experts, who together had over 1000 years of collective experience in safety. Alongside the interviews, additional data sources were used to triangulate and strengthen the findings.

The research looked at the wider picture of how risk assessment is conducted by a range of agencies across three different sectors: hi-tech (nuclear and aviation), conventional workplaces (OSH) and non-conventional (leisure). This broad approach enabled a comparison between sectors to see what differences existed.

What emerged was a remarkably consistent story across all respondents that highlighted the major present-day issues in the UK’s management of risk. The research concluded by offering a number of ideas (not presented here) as to how duty holders and proportionate decision-making may be assisted. Selected findings, presented in order, are as follows:

1. Support for the UK approach remains strong

The primary legislation and the goal-setting philosophy of the HSWA upon which the UK model is based was strongly endorsed by the community of risk experts. Its flexible, non-prescriptive nature and demands for a thinking approach in particular were cited as key parts to a sensible, balanced approach to risk management. This mirrored a key finding of the 2011 Löfstedt review.

An analysis of core government publications also found strong support for rational decision-making that seemed to agree with the idea of proportionality. This is partly due to the HSE, which has promoted this effectively in key documents such as Reducing risk, protecting people (R2P2), although less so in early editions of Managing for health and safety (HSG65), indicating a clear change in the regulator’s stance.

2. Continuing confusion

After close on 50 years of the HSWA, there are still fundamental issues affecting the understanding of risk and the meaning of proportionate decision-making.

It was found that, despite the government reviews, significant problems remain in regard to risk assessment and decision-making as currently practised. At a basic level, this includes confusion over risk terminology, including fundamental concepts such as risk, hazard and safety.

For instance, it was found that many agencies have defined risk as ‘some combination of probability and consequence’, which can and has led to misunderstandings. It could, for example, lead to a conclusion that being killed by a lightning strike is high risk because the consequences are grave. Lord Hobhouse, commenting on a 2003 courtroom decision over the safety of a lake in a country park, made a striking observation: ‘It is a fallacy to say that because drowning is a serious matter that there is therefore a serious risk of drowning.’

Participants also expressed misgivings over the widespread use of qualitative risk assessment in OSH, with tools such as risk matrices and scoring systems seen as highly subjective.

In addition to the uncertainty over terminology, and aligning with Löfstedt’s findings, there was perceived widespread misunderstanding of regulatory and legal requirements, including the meaning of reasonable practicability.

Linked to this was discussion of the quality of training courses. It was proposed that these had not kept pace with modern thinking and developments – indeed that they had barely evolved in several decades. Many respondents spoke of simplistic, ‘dumbed-down’ content, which was light on the philosophy behind decision-making and thinking processes, the focus instead being form-filling, and the following of laid-down protocols and guidance. This could be seen as subverting the system intended by Lord Robens by discouraging a thoughtful approach to safety. Furthermore, it was felt that OSH training neglected to cover how to be proportionate.

Other issues were identified as impediments to proportionate decision-making: uneven enforcement by regulators; the influence of third parties such as insurance companies; the pressure for comprehensive records and bureaucracy; and the prevalence of competing ideologies such as hazard-based thinking, risk minimisation and ‘zero risk’ strategies.

3. Courts struggle with risk and its interpretation

Given these issues, particularly in relation to risk terminology and the meaning of proportion, duty holders might reasonably expect to turn to courts for guidance. However, the study also conducted a review of prominent legal judgements over the last several decades, and this found an extended debate over the understanding and interpretation of risk within the courts themselves.

As with the duty holder level, misunderstandings exist over the meaning of fundamental concepts such as risk, hazard and safety. It is also evident, from the history of appeals (such as the one Lord Hobhouse contributed to), that the understanding of risk and the UK’s alleged risk-based philosophy varies as you progress from lower to higher courts.

Coupled with this is strong evidence of a tendency for the legal process to be consequence-driven, often without much, if any, consideration of the prior risk. This can lead to extremely low-probability events coming to be considered high risks.

One could reasonably question how duty holders can be expected to comply with legislation, the meaning of which is still being debated within the legal system itself.

4. Raw deal for duty holders

The research served to highlight the stark difficulties duty holders face. Most are trying their best to cope with a regulatory system that deliberately leaves much to their discretion. Managing risk proportionately is difficult enough, but the system of control can be unevenly applied, and it is all too easy to find fault in some agency’s safety management system – which may or may not be causal – after an event has occurred.

Layered on to this are a multitude of other factors and forces to which duty holders are subject; many of these serve to divert them away from a proportionate approach. The consequent output from safety management is that it is probably less efficient and safe.

5. Risk assessment and the ideas around it continue to evolve

Also emerging from the research was a strong sense of the evolution of the OSH sector. This was evident through analysis of changes in core regulatory guidance such as HSG65. Having gone through a period of formal control that emphasised documentation, rigid frameworks and protocols, there has been a noticeable shift towards a more simplified approach that stresses proportionality in decision-making and gives greater freedom to duty holders.

This modern concept of a more adaptable, less system-bound, nuanced approach to decision-making has also been identified in recent articles in IOSH magazine by John Green and Dominic Cooper. It may reflect, intentionally or otherwise, a return to Lord Robens’ vision of a more thinking culture of risk management.