Still waiting for answers
November 1st 2009

In December 2008,the Secretary of State at the Department for Work and Pensions (DWP) announced an inquiry into the underlying causes of construction fatalities.Rita Donaghy was appointed as independent chair of the inquiry and published her report One death is too many on 8 July 2009.The Government was due to respond in October but is yet to do so. Paul Marshall and Niall McLean consider the report's potential implications

One death too many makes 28 recommendations in total. A clear theme throughout the inquiry's report is the recognition that construction deaths have become socially acceptable. The focus of the report is on changing this perception.

The report makes clear that this can only be achieved by the creation of a safety culture within the construction industry, with, amongst other things, an increased focus on safety responsibilities from directors down to individual workers.

Leadership The report makes clear that leadership on health and safety at the top will help to create a strong safety culture. The report recommends introducing positive legal duties on directors to ensure good health and safety management at all levels. This could be done either by amending the Health and Safety at Work Act, or by introducing a new regulation which could incorporate the Institute of Directors and HSC guidance 'Leading health and safety at work: Leadership actions for directors and board members'. Importantly this would mean that directors of a principal contractor would need to satisfy themselves that health and safety management is adequate in all the companies they use as sub-contractors.

Workforce At the other end of the scale, the report notes that engaging the workforce in a strong safety culture will also reduce fatalities and serious accidents. Workers are often vulnerable due to a fear of job security, which means unsafe practices or serious accidents frequently go unreported. To help overcome this problem the report recommends an increased role for trade union safety representatives to support workers. The inquiry members hope this will lead to sustainable improvements in safety as it has in other sectors, such as the oil industry.

Gangmasters The report focuses on the treatment of those employed by Gangmasters as labour-only sub-contractors – described as "the most exploited area in the industry". The report recommends that a clear signal should be sent that there is a minimum level of standard beyond which society will not tolerate exploitative practices, and that the Gangmasters Licensing Regulations should be extended to cover the construction industry. It is hoped that this additional level of regulation of labourers will increase safety at the bottom level of the construction industry.

Workplace fatalities The report notes concerns about the delays often experienced by bereaved families in getting an outcome, be it through a prosecution or inquiry, following a fatal accident. Lord Cullen has recently carried out a review of the fatal accident legislation in Scotland and has commented extensively on this issue. The inquiry members believe that delays in the legal system contribute to the way in which society regards construction fatalities. Both the report and Lord Cullen's review consider the creation of a HSE specialist unit for dealing with fatalities within the Crown Office in Scotland an effective way of raising the profile of construction fatalities.

The report recommends improvements in the reporting of serious accidents by the HSE to make this information more accessible to the public. This will generate negative publicity for construction companies who breach their duties even if they have not been prosecuted. The report also recommends that the HSE should consider prosecutions where unsafe practices have been identified even where there has not been a serious accident. This approach resonates with the view held by the HSE and the Crown in Scotland: prosecutions have a significant impact on a company's behaviour going forward.

The future The report is far reaching in that it pulls together separate strands of health and safety thinking into one place. It has significant backing from trade unions and safety campaigners who wish to see it implemented in full. The strengthening of union representation is likely to prove a politically sensitive issue but some political support has already been shown for certain aspects of the report, such as extending the Gangmasters Licensing Act 2004 to cover the construction industry. If the government adopted the report's recommendations and made this proposal law it would significantly increase the level of regulation within the construction industry.

The big question is: will this or a future government be willing to take the report's recommendations and make them law? The construction industry awaits an answer.