Work and Health: 50 Years of Regulatory Failure

The publication of Work and Health: 50 years of regulatory failure coincided with the 50th anniversary of the publication of the Robens Committee report on safety and health at work. The report led to the enactment of the Health and Safety at Work Act 1974, which remains the principal legislative measure to this day. The authors have produced an excellent and highly analytical review of the stark deficiencies of the current position in the UK based on extensive research and a comprehensive review of the relevant literature. Their critical lens also extends to the approach taken by Robens though (whatever the shortcomings of that report might be) it would be remarkable if, after the passage of 50 years, reform was not called for. The scope of the work is also innovative and extends to the impact on health of a wide range of work-related factors such as low pay. This dimension provides a very welcome addition to the debate. The authors contend at [4] that `the regulation and governance of work health and safety in the UK has remained pretty much unreformed … [since 1974] … and continues to fail to address the needs of workers’ and paint a convincing picture of a `fundamental problem of regulatory incapacity that stemmed from an unwillingness of the state to provide adequate protections to workers’ safety and health needs at work’.

The publication of this work could not be more timely. It is manifestly the case that the challenges faced by health and safety law have changed dramatically over the last 50 years; it is equally the case that the effectiveness of the current health and safety regime has been steadily diluted. The `fissured workplace’ continues to present challenges which cry out to be addressed. Many years ago, Collins drew attention to the question of disintegration and his analysis remains, if anything, even more pertinent today (H. Collins, ‘Independent Contractors and the Challenge of Vertical Disintegration to Employment Protection Laws’ (1990) 10 OJLS 353). A significant increase in psychosocial harms in the workplace has also become evident: the effect of stress, bullying and workplace harassment. Psychosocial harm also is significantly gender biased. A 2024 Australian report (Safe Work Australia: Psychological Health and Safety in the Workplace) notes that women were more likely than men to experience such harms as they were more exposed to psychosocial hazards. Psychosocial harm is an area where both the common law and statute have failed to react meaningfully to contemporary advances in understanding the nature and effect of this type of harm.

New challenges continue to appear. Home working has often been associated with undesirable working practices and those working on this basis may well also have difficulty in establishing employment status. During the pandemic the number of individuals working in this way increased exponentially and it seems likely that the world of work has, as a consequence, been transformed. There has been increasing interest in a ‘right to disconnect’. In Australia the enactment of the Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024 (Cth) has amended the Fair Work Act 2009, so that an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable (and see, G. Golding, ‘Unwinding Australia’s New Right to Disconnect’ (2024) 37 AJLL 201). The underlying motivation is understandable but one wonders whether this simply engages with one dimension of a wider problem, which might be thought to be the dangers of working excessive hours when unsupervised.

The path to compensation for industrial injuries has also been narrowed. Injured employees have long been able to sue for damages for breach of statutory duty and, depending upon the wording of the statute, fault need not be shown. However, section 69 of the Enterprise and Regulatory Reform Act 2013 has meant that the law has taken a very different direction as employees who are injured at work are no longer able to raise a claim of this sort if a breach of health and safety regulations was a cause of their injury. They must look to the common law instead. Victorian law reformers would be perplexed.

Against a backdrop of very considerable challenges the authors put forward a number of proposals for reform. These are well considered and deserve to be taken very seriously by law reformers. The mooted reforms focus on different dimensions of the regulatory challenge. Governance is viewed as an important area for reform and strengthening the independence and democratic nature of HSE governance is seen as necessary. The authors’ preferred model is for the situating of the HSE in a new Ministry of Labour, as well as within a wider Worker Protection Agency responsible for the delivery of a broad range of labour inspection functions.

A stronger role for worker voice is seen as a key element to health and safety being more effective in the UK. Robens, very much reflecting the times in which his report was published, viewed representation as being based on a ‘single channel’ approach. The authors rightly see that at [78] as now constituting a major weakness `in as much as it restricts the appointment of workers’ representatives to situations in which trade unions are recognised; situations which are increasingly less common due to the dramatic decline that has taken place in union recognition’. A number of proposals are put forward which make good sense such as measures to allow trade unions to represent members, whether or not they work for an employer who recognises them for the purposes of collective bargaining. The appetite of government for empowering the collective voice remains to be seen.

Not surprisingly, the authors consider the implications of the fissured workplace for the current regulatory framework including the core duties in the 1974 Act. Currently, section 3(1) of Act provides that it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. Again, regulations such as the Construction (Design and Management) Regulations 2015 allocate responsibility to a number of key parties and elaborate in some detail what each should do. The House of Lords purposive decision in R v Associated Octel [1996] ICR 972 demonstrated that section 3 takes a much more rigorous and expansive approach to responsibility than the common law. The Court holding that the employer’s duty to non-employees was breached by the behaviour of an independent contractor. The outcome was arrived at by taking a functional approach, rather than allowing enquiry to be restricted by the nature of the contractual relationships that the employer had entered into. The authors note at [67] that `it is uncertain to what extent the duty extends to (a) afford protection against the adverse health and safety effects which can stem from an organisation squeezing the prices paid to suppliers with whom it is contracting to the point where their ability to invest in health and safety measures is significantly restricted and (b) cover situations of multi‐tier contracting where, for example, a major retailer contracts production out to a manufacturer who, in turn, make use of homeworkers working in inadequate health and safety environments’. A variety of ways to address such concerns are advanced including extending the current duties of employers to all those labouring on their behalf regardless of where, or for whom, the work concerned is undertaken. Difficult policy questions will though arise as to where to locate the boundaries of an employer’s responsibility.

A key premise of the work at [11] is that ‘In all societies people in paid work have a basic human right to expect that their health is not harmed by this activity and therefore those who are responsible for this work and thereby benefit’. This fundamental proposition should command wide if not universal respect but, if so, urgent action is shown to be called for. The current position could not be less satisfactory; as the authors observe at [138]: ‘the creation of a situation where there is a minimal chance of a workplace being inspected in a given year—or at all—and very little likelihood of enforcement notices being issued or prosecutions being brought where non‐compliance with legal standards is identified. In short, it is impossible to any longer claim that a meaningful system of health and safety regulation, within which compliance is sought, exists in the UK’. Successful reform will be contingent upon an adequate allocation of resources and a reversal of unsupportive government policy in this regard. The savage cuts in funding for the HSE for the decade ending in 2019/20 documented in the work make for depressing reading.

The authors have produced an excellent critique of the inadequacies of the current position where worker protection in respect of health and safety is concerned. It would be a matter of great regret were their suggestions for reform not to be acted upon.