Regulatory lawyer Rhian Greaves gives her take on last week's Work and Pensions Select Committee hearing on COVID safety in the workplace, in which unions and MPs questioned HSE leaders on its response to the pandemic.
First – like so much of our national discourse – there was a clear disparity between the perception of the regulator (and the industry representatives) and that of the unions, with polar opposite views on display.
The former talked about businesses trying to do the right thing, implementing familiar control measures in the workplace and with some success; HSE chief executive Sarah Albon indicated that the level of compliance with COVID measures had been 'significantly better' than is routinely the case with typical health and safety risks. The union representatives however felt the 'lived experience' of their members had not been reflected in the level of enforcement action taken and that there was an absence of any 'realistic chance of enforcement'.
We saw a similar divide emerge when the questioning inevitably turned to the categorisation of the risk as 'significant' rather than 'serious'. Both the TUC and Prospect very clearly felt this had impeded inspectors in their enforcement work. Prospect's general secretary, Mike Clancy, felt there had been a 'failure to read the room of civic opinion' on the part of the government and the HSE.
Sarah Albon on the other hand, was equally clear that nothing in the HSE's Enforcement Management Model (EMM) – a 46-page guide to inspectors designed to standardise responses to workplace hazards, advising when to ‘engage’ employers and when to escalate to enforcement action – fettered an inspector’s discretion to take the action they thought appropriate to the risk. In reality? It is difficult to tell. What has been clear throughout the pandemic is that the HSE has been overwhelmed and under-equipped to deal with the central role thrust upon it.
The resourcing problems faced by the HSE were inescapable throughout the course of the entire hearing. This was the one unifying thread of the morning. It ought to shock people that there are just 390 main grade inspectors. The ability to meaningfully regulate requires more boots on the ground, which in turn needs a sustained funding commitment from central government.
'Employers are living the COVID risk along with their staff in a way that they don’t normally do'
My own experience suggests that organisations have thought long and hard about their control measures and they have taken their responsibilities seriously. It was interesting to hear the HSE's director of field operations, Samantha Peace, pin this – at least in part – to the fact that employers are living the COVID risk along with their staff in a way that they don’t normally do. I agree with this and have seen this time and again when speaking to business leaders about their approach to COVID security. It has impacted them in a way that machine guarding or ladder safety typically hasn’t. It is my firm hope that the experiences we have all had with COVID will help engender a more positive health and safety culture as we emerge from the pandemic.
Has the hard work and positive motivation of employers been enough to stop workplace transmission? No. And therein lies the difficulty for the HSE.
Serving notices and beginning prosecutions are serious acts, alleging breaches of the criminal law. They are subject to well defined safeguards for and challenge by dutyholders who have had to adapt, adapt and adapt again as the government, the HSE and their trade bodies have almost continuously changed the goalposts as knowledge about the virus advances.
What came through loud and clear is that the HSE is having to be cute with its limited resources. I suspect inspectors feel they can do more good and cover more ground in regulating by advice and co-operation than they can tying themselves up in legal paperwork to the exclusion of covering more businesses via inspection. It may be that this has played as much – if not more – of a part in the limited enforcement actions as the classification under the EMM.
Employers will certainly need more help as we emerge from this lockdown. Can we mandate testing? Can we require employees to be vaccinated? How long do we have to maintain social distancing? Can we remove some control measures as virus prevalence in the community drops?
These are just some of the questions that are already swirling around. It was staggering therefore to find that the HSE doesn’t have a view on either lateral flow testing or vaccination, branding these 'employment law issues', commenting that the tests 'don’t have a place in the risk assessment process'.
Sarah Albon said the agency hadn’t been involved in any of the discussions but acknowledged the complexity of the ethical issues involved. She is absolutely right that the issues are extremely complicated, but surely our health and safety regulator has to be a part of that challenging discussion? I find it difficult to entirely divorce these concepts from the wide ranging general duties imposed by the Health and Safety at Work Act.