Legal spotlight - September 2018

THE HEALTH and Safety Executive made it clear last year that improving workplace health was to be a key priority. With continuing high levels of work place ill health identified as an area of concern for stakeholders across the health and safety system, its improvement is one of the cornerstones of the HSE's Helping Great Britain Work Well campaign, confirmed and enhanced in its "Go Home Healthy" initiative and in its sector and health priority plans.

Worker health, and in particular mental health, is a key priority not only of the HSE but of the UK government too. The Stevenson/Farmer report published last year concluded that the UK "faces a significant mental health challenge at work", and made various recommendations to achieve their vision of "dramatically reducing the proportion of people with a long-term mental health condition". Six core standards were identified to provide a framework for a set of actions which all organisations can implement quickly:

• Produce, implement and communicate a mental health at work plan;
• Develop mental health awareness among employees;
• Encourage open conversations about mental health and the support available when employees are struggling;
• Provide employees with good working conditions and ensure they have a healthy work-life balance and opportunities for development;
• Promote effective people management through line managers and supervisors; and
• Routinely monitor employee mental health and wellbeing

In response, the UK government has encouraged all employers to take on board the recommendations and has tasked the HSE with producing revised guidance to raise employer awareness of their duty to assess and manage work related ill health. In its Business Plan for 2018/19, the HSE has committed to produce this by the end of the year.

Enhanced standards are recommended for public sector employers, with which the government has signaled it's agreement in principle.

That there is a link between productivity and worker safety and health has long been recognised, but with an emphasis on safety and preventing accidents it can easily be forgotten that obligations in relation to health and wellbeing also exist (the Health and Safety at Work etc Act 1974, the foundation of the current system, imposes obligations in respect of both). The HSE's stated aims together with growing public and political support for improved health, both physical as well as mental, however, herald a new dawn in safety and health compliance.

Targeted inspections have already begun in sectors the HSE considers high risk, including in construction, waste and recycling, with agriculture and the offshore wind, oil and gas industries specifically on the agenda for later this year too. The HSE has warned employers that those found in breach will face not only the prospect of hefty fines but publicity will be used to "maximise the effectiveness of investigations and …enforcement".

Recent enforcement action confirms that this was not an empty threat; in May, for example, car parts manufacturer Faltec Europe Limited, was fined £1.6 million after a Legionnaires' disease outbreak and a dust explosion occurred at the same plant within a year. Faltec was found to have failed to effectively manage its water cooling systems within the factory, causing the legionella bacteria within the water supply to grow to potentially lethal levels. Prosecutions for exposure to Hand Arm Vibration Syndrome (HAVS), too, are on the rise with fines in the hundreds of thousands of pounds increasingly common; the HSE is increasing the pressure on employers to make sure they take steps to reduce risk.

The penalties for breach of obligations in relation to health are the same as for safety breaches and cannot be ignored – particularly as multi-million pound fines are increasingly being handed down for health and safety offences irrespective of any harm caused. The HSE and UK government has made their position clear; with targeted inspections in key areas now being carried out businesses must ensure compliance, and, at the very least that they have in place a proactive, maintained and properly resourced and enforced policy which addresses both safety and health.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com