Paul Clarke takes a detailed look at the Löfstedt review published last November, as it affects the construction industry, and describes what happens next in what is being described as Löfstedt II.

Introduction

Professor Ragnar Löfstedt of King’s College, London, was given a clear brief by the Government when he launched his review of health and safety legislation in 2011. His focus had to be on identifying the measures that could be scrapped as unnecessary burdens on businesses. In his 110-page report, the professor said that he wanted to enable businesses to reclaim ownership of the management of health and safety and to see it as a vital part of their operation rather than an unnecessary and bureaucratic paperwork exercise. The Government rapidly announced that it was ready to accept his recommendations in full and instructed the relevant departments to begin work as a matter of urgency on carrying his suggestions forward.

Now, in what is being described as Löfstedt II, Employment Minister Chris Grayling has announced that he has asked the professor to provide the Government with his assessment of how implementation of the reforms is progressing. This second review will not revisit the questions originally considered by the first, however, nor has the professor been asked to make recommendations for new areas of work. Mr Grayling has requested that this latest report be delivered by the end of January 2013.

Progress to date

The professor will find that significant progress has been made with regard to implementing his 26 recommendations. The Health and Safety Executive (HSE) has already relaxed the requirements for reporting accidents at work under the Reporting of Injuries, Diseases & Dangerous Occurrences Regulations 1995 (RIDDOR), issued new guidance making it clear that businesses do not need to test all portable electrical appliances on an annual basis and consulted on the removal of 21 "redundant or outdated" statutory instruments (SIs).

With regard to exempting from health and safety law those self-employed people whose work activities "pose no potential risk of harm to others", proposals are currently under discussion to determine the best way to achieve this recommendation. Consultation is planned between July and November 2012. Proposals for wider amendments to RIDDOR are currently under development. The HSE plans to consult on these in the summer of 2012, with a view to any changes coming into force in October 2013.

CDM

The HSE has completed its evaluation of the effectiveness of the Construction (Design & Management) Regulations 2007 (CDM 2007) and the associated Approved Code of Practice (ACoP) aiming to ensure that there is a "clearer expression of duties, reduction of bureaucracy and appropriate guidance for small projects". An independent report on the regulations has been published by the HSE which has said that the evidence provided will support policy development in this area. It also noted that industry practice was found to have a significant influence on how CDM 2007 is implemented and promised that the construction industry will be fully consulted before any changes are made.

Working at height

Among the SIs identified by Professor Löfstedt, and currently the subject of an HSE consultation on their removal, are the Notification of Conventional Tower Cranes Regulations 2010. Almost immediately, this provoked an Early Day Motion in Parliament with MPs expressing "strong concern that recommendations contained in the Government's Löfstedt report are putting in jeopardy the safety regulations relating to tower cranes and working at height".

They have also given their support to a protest and lobby of Parliament by the Construction Safety Campaign which has called on the Government to draw back from the implementation of these recommendations.

With regard to the Work at Height Regulations 2005 and its associated guidance, the HSE is currently developing its evidence base to determine "if and why the regulations cause dutyholders to go above and beyond what the law requires". This will inform consultation with the industry in the autumn of 2012. In addition, the HSE is said to be "refreshing and simplifying" its main work at height publications to help dutyholders, particularly SMEs, learn how to comply with the law, and to dispel some of the myths around working at height (that the use of ladders is banned by law, for example).

Approved Codes of Practice

The Löfstedt review called on the HSE to review all its ACoPs, with the initial phase of this process to be completed by June 2012 so that businesses could have certainty about what is planned and when changes can be anticipated. This deadline was met when the HSE issued a consultation on 25 June, which is open for comments until 14 September 2012, with regard to the revision, consolidation or withdrawal of 15 Approved Codes of Practice to be delivered by the end of 2013 and on proposals for minor revisions, or no changes, to a further 15 Codes for delivery by 2014.

The consultation includes a proposal to withdraw the ACoP for the Management of Health and Safety at Work Regulations 1999 and to replace it with a suite of more specific, updated guidance by 2013. The HSE also seeks views on a proposal to limit the length of all ACoPs to a maximum length of 32 pages, other than in exceptional circumstances.

These Codes provide practical guidance on complying with the general duties of the Health and Safety at Work, etc Act 1974 or the requirements of goal-setting regulations. They are, according to the HSE, important tools for experienced health and safety audiences that explain the law and enable the control of more complex risks.

Among the 15 ACoPs that HSE proposes to revise, consolidate or withdraw in accordance with Professor Löfstedt’s recommendation are a number of particular interest to the construction industry. These include:

  • the management of asbestos in non-domestic premises

  • work with materials containing asbestos

  • Legionnaires’ disease

  • safety in the installation and use of gas systems and appliances

  • management of health and safety at work, and

  • workplace health, safety and welfare.

With regard to the last of these, it is proposed that this ACoP is revised to make it clearer what duty holders must do to comply with legal requirements and to reduce duplication in the Code of duties covered in the legislation. The publication does not include current statutory provisions as amended by the Miscellaneous Amendment Regulations 2002 and other regulations. It will be updated to reflect subsequent regulatory change in areas including:

  • building stability

  • workplace insulation and excessive sunlight and temperature

  • accommodating for disability, and

  • falls from height.

Löfstedt II

It will be interesting to see what Professor Löfstedt makes of the implementation of his review, given that he told a recent Institute of Employment Rights conference that he objected to the Government misrepresenting his recommendations, stressing that he did not propose a 50% "cut" in health and safety regulations (as Ministers have claimed), but rather a 35% “consolidation” process.

Will the Government bow to his more conciliatory approach or is his review, as one speaker at the conference said, only there "to give an aggressive government attack upon worker safety a thin veneer of academic respectability"? One particular point that critics have asked him to clarify is the designation of workplaces as low or high risk. This division will crucially affect how heath and safety rules are applied but remains undefined by any official agency.

Last reviewed 6 July 2012