Annex A : Analysis of the outcome of the responses to the Consultative document - with HSE commentary
Annex B : List of respondents
1 The consultative document, Health and Safety responsibilities of Directors, was published in early January 2001. The eight week period for consultation ended on 9 March 2001. A number of submissions were received after this date and have been included in our analysis of comments.
2 1,560 consultative documents were issued direct by HSE to interested parties. In addition the document which was posted on the HSE web site was accessed by over 11,000 enquirers. 462 responses have been received. The vast majority of respondents chose to use the questionnaire supplemented in many cases by fuller comments to address specific issues in more detail. A breakdown of responses by category of respondent is set out at Chart 1 below.
3 A full list of respondents is set out at Annex B below. The headline numerical breakdown of respondents by category was as follows : Employers 210 Trade Associations 36 Trade Unions 15 Local Authorities/Local Authority bodies 63 Government Departments, NDPBs, Agencies, etc 20 Professional and other bodies 15 Charities and voluntary bodies 17 Safety consultants/specialists 21 Other organisations 65
4 The responses show overwhelming support for the need to set out in guidance clear principles concerning the vital role played by boards, directors and senior managers in ensuring health and safety risks are effectively managed. There was wide-ranging recognition and support for the need for effective leadership from top management on health and safety. There was considerable support too, ranging from 80% - 97%, for the value of the proposed guidance and in particular the Action Points.
5 While there was considerable support for the benefits that guidance would bring other respondents argued for legislative underpinning supported by an ACOP or guidance as necessary. Some respondents argued forcefully against the introduction of a new creature, that is, a voluntary code preferring instead to issue as guidance. Others saw clear signs of growing societal pressure for boards and directors to properly address and control risks and noted the contribution the code could make in helping boards focus more clearly on their collective responsibilities.
6 The HSC recommendation that boards appoint one of their number to be the "health and safety director" attracted considerable support - over 80% of those responding agreed with the HSC recommendation. 84% of Chief Executives and Directors who responded agreed with the recommendation. Conversely concerns were expressed about the effect such a development would have on collective board responsibility for health and safety matters - health and safety matters could be deflected away from the board to the "health and safety director" who could become a scapegoat in the event of failure.
7 It is clear from the comments received that we must ensure that the voluntary code is drafted to properly reflect the diverse nature and structure of companies and other organisations, both public and private. Many respondents considered that the code should be drafted to provide much more guidance on the applicability of the requirements to :
8 Over 81% of respondents found the introduction concerning the purpose of the code sufficiently clear. But concerns were raised by some trade associations and local government bodies about specific aspects of the proposals.
9 The CBI argued that legislation in this area was not needed and welcomed HSC's intention not to issue the code as an ACOP. Further the CBI contended that it was not possible to define health and safety legal responsibilities for directors either individually or as a board.
10 The Construction Confederation, Chemical Industries Association (CIA), Engineering Employers Federation (EEF), the United Kingdom Petroleum Industry Association (UKPIA) and the CBI contended that the code should be issued as guidance. A number of trade associations considered a new class of document, the voluntary code, unnecessary and complicated and confused the well established hierarchy of regulations, ACOPs and guidance already in place. It was important too, the CBI, CIA and EEF noted, that the additional burden compliance with the code's requirements placed on companies was recognised.
11 The CBI considered that the proposed code should be directed not only at directors but at employees and contractors too. The Construction Confederation argued for a code to complement this one that addressed the health and safety responsibilities of employees.
12 CIA saw no difficulty with the code given that most of its members were complying with the requirements contained within it already. Further CIA called on HSC/E to co-operate with the Environment Agency and SEPA to develop a joint code on directors' responsibilities covering both health and safety and environmental management given that most companies have policies and systems that address health, safety and the environment together.
13 The Construction Confederation called for clarification and confirmation in the introduction to the code of its applicability to all organisations, both in the public and private sectors.
14 The GMB believed that directors responsibilities for health and safety should be enshrined in regulation. It did not consider that a voluntary code would do anything to improve health and safety in the majority of companies.
15 The Transport and General Workers Union (T&G) welcomed moves to clarify the health and safety duties of directors. The T&G did not believe a voluntary code would be effective outside of the better companies. There was, the T&G maintained, a disincentive for companies in not implementing the action points in the voluntary code - by not allocating such responsibilities to directors it made the likelihood of prosecution under s. 37 of HSWA that much more difficult. The desired impact would not be achieved until directors' responsibilities for health and safety were put into regulations.
16 The T&G called for monitoring of implementation of the code in order to judge its effectiveness. This work needed to be planned and would be aided by the creation of a register containing the names of organisations who had signed up publicly to the code.
17 A number of local authorities and local authority bodies called for greater clarity in the introduction to the code to better assist them meet the requirements and in particular to identify where responsibilities lie in those organisations that do not have board structures.
18 RoSPA considered a voluntary code prudent in the first instance while noting existing corporate responsibilities for ensuring compliance with health and safety law. Further RoSPA called for HSC to monitor the impact of the code and linked initiatives and for the establishment of a high level review group to consider and report on a whole series of issues including the integration of occupational health and safety within 'business risk management'.
19 While the Centre for Corporate Accountability (CCA) welcomed the guidance in terms of setting out the health and safety responsibilities of directors it considered that the voluntary guidance should occur within a legal regime that establishes that directors have safety duties by law. Further the CCA argued for a three stage approach, i.e., firstly the establishment by statute of legal duties on directors; second, the development of an ACOP; third, the publication of guidance, similar to that contained in the consultative document, that sets out best practice. The CCA considered that the voluntary code has serious limitations and in particular by not aiding prosecutions through the imposition of a legal duty to comply.
20 The CCA called for the expansion of the code to include coverage of board's responsibilities for establishing systems of management to ensure that the activities of the company do not pose unreasonable risks to employees and members of the public. Further the code should describe those key facets of health and safety management, including for example risk management, that boards needed to ensure arrangements were in place to cover.
21 There was a call from professional bodies too for clarification concerning the code's applicability to individuals elected or appointed, for example, to school's board of governors and NHS Trusts.
22 We are proposing to bring out more clearly in the introduction :
We are now proposing, as the result of consultation, to monitor the impact of the code on a regular basis, report our findings to the Commission and revise and republish the code as the Commission considers necessary.
23 Over 93% of respondents were satisfied that the style and language of the code was appropriate to the targeted audience. A number of respondents, EEF and RoSPA included, felt that the guidance laid down important principles to be followed rather than points for action. On terminology it was suggested that the term 'employees' rather than 'staff' should be used throughout the code.
24 EEF argued that the code would benefit from being more clearly focused and directed too at senior managers who have a role in advising the board on health and safety matters and securing their support and commitment.
25 The T&G called for key points concerning health and safety law to be moved up to the introduction or preface to the code with more detailed references set out, as proposed, in the Annex.
26 RoSPA contended that the collective responsibility of directors for ensuring the effective operation of the overall risk capability of their organisation should be highlighted in the introduction to the code. Further while the action points were without exception laudable RoSPA questioned whether the points, as set out, really represented a logical and essential set of considerations. Little or nothing is said about the need to develop an overall corporate health and safety strategy based on the results of periodic review by companies and other employers and the importance of setting clear priorities, meaningful targets and realistic time scales for implementation.
27 We will make clear the important role senior managers with health and safety responsibilities have in informing, advising their respective boards and securing commitment to taking forward health and safety plans and programmes.
28 Almost 97% of respondents agreed the need for boards to both formally and publicly accept their collective role in providing health and safety leadership in their organisation.
29 The CBI stressed the need to ensure that commitments such as those contained in Action Points 1 and 2 are not burdensome and can be met in a less bureaucratic and flexible way. The Institute of Directors (IoD) commented that the board needed to take a lead on key issues of policy to ensure effective promulgation throughout the organisation.
30 The T&G called for the inclusion of a more positive statement calling on boards to direct the implementation of management systems for health and safety risk just like any other aspect of the business. The GMB called for the expansion of the provision in the code concerning the production of the statement of health and safety policy and arrangements to include the involvement of trade union safety representatives.
31 Over 95% of respondents agreed that each member of the board needed to accept their individual role in providing health and safety leadership in their organisation.
32 IoD in its comments noted that directors responsibilities are held jointly and severally - individual and collective leadership for health and safety are required.
33 It is proposed to take Action Points 1 and 2 forward as consulted on.
34 Over 92% of respondents agreed that the board needs to ensure that all of their decisions reflect their health and safety intentions as set out in their health and safety policy statement.
35 The CBI supported this Action Point but stressed that the weight attached to health and safety issues must be proportionate to its significance within the investment.
36 Both the CBI and other respondents including UKPIA felt that more appropriate examples concerning business investment set out in para. 12 of the draft code could be given recognising that such decisions had to be commensurate and proportionate to the degree of control exercised by the board.
37 One large utilities employer noted its belief that this was the most challenging of all the Action Points in terms of being able to demonstrate compliance. The respondent commented that while good governance necessitated ensuring that all business decisions include a health and safety impact assessment this process required a high level of awareness and discipline at all levels within the organisation.
38 The Construction Confederation submitted that not all board decisions had health and safety implications. It was important that in taking forward this Action Point HSC/E ensured that a paper chase was not created inhibiting good health and safety management.
39 The T&G called for the inclusion of a reminder to boards that the use of contractors would not free them from duties to comply with health and safety law in areas where they are used.
40 We have revised Action Point 3 to help to ensure that the examples in para. 12 of the draft code bring out better the health and safety implications of business decisions and para. 14 to spell out more clearly the continuing health and safety responsibilities of boards when work is contracted out.
41 96% of respondents agreed that boards needed to recognise their role in engaging the effective participation of their staff in improving health and safety.
42 The CBI noted that the management of health and safety requires effective participation of all - but does not require the proactive consultation of all employees prior to decisions being made. An appropriate balance of authority and accountability had to be recognised.
43 The Construction Confederation noted that consultation was vitally important to the management of health and safety within an organisation. Involvement of workers must be effective and must engage all workers.
44 GMB called for the inclusion of an explicit requirement, building on the Safety Representatives and Safety Committee Regulations 1977, for the setting up of corporate level joint health and safety committees where senior safety representatives are consulted and have the means of raising concerns at a corporate level. The T&G submitted that the code would benefit by having an explicit reference encouraging employees to become involved at a corporate level.
45 It is proposed to take Action Point 4 forward as drafted subject to amendments to bring out more clearly the importance of the contribution of all employees to ensuring risks to health and safety are properly controlled.
The board needs to ensure that it is kept informed of, and alerted to, relevant health and safety risk management issues
46 Almost 97% of respondents agreed that boards need to ensure that they are kept informed of, and alerted to, relevant health and safety risk management issues.
47 It is proposed to take Action Point 5(a) forward as drafted.
48 Over 80% of respondents agreed with the HSC recommendation that boards should appoint one of their number to be the "health and safety director". Of the 210 employers and company Chief Executives and Directors who responded 80% agreed with the HSC recommendation.
49 However one-third of trade associations responding did not support such an appointment. A number of respondents stressed the importance of avoiding the "health and safety director" becoming a scapegoat in the event of a health and safety failure. Ensuring that the "health and safety director" had the competence to do the job was flagged up as of great importance by a number of respondents as was the necessary resources and support of other board members.
50 A number of trade associations were concerned that the recommendations would dilute or detract from collective board responsibilities for health and safety. UKPIA however supported the appointment of a board champion but noted the importance of ensuring that this role must not detract from the line management responsibilities of other directors for health and safety. EEF and IoD stressed the importance of recognising that ultimate responsibility rested with the Chairman and/or Chief Executive.
51 The CBI, Construction Confederation, EEF and IoD opposed the appointment of a "health and safety director". The CBI had a serious concern that the recommendation risked diluting the principle that health and safety needed to be a collective effort both inside and outside the board. The CBI did not consider that the proposal added to existing health and safety arrangements or performance.
52 CBI saw a risk too in ascribing responsibility and culpability to the "health and safety director" in the event of an accident irrespective of the particular facts of the matter. The British Retail Consortium, noting both considerable support and opposition among its members for the recommendation, warned by appointing a named individual there was the danger of the developing a 'blame culture'. The British Chamber of Commerce noted the burden the recommendation would place on small companies which would not have the resources necessary to enable the health and safety champion to function effectively.
53 GMB supported the appointment of a designated director with responsibility for health and safety. However it was considered essential that the corporate responsibility for health and safety rests with the most senior person in the organisation, ie the Chairman or Chief Executive. The T&G considered the HSC recommendation a sensible way forward - the guidance did not remove health and safety responsibilities from the board and guarded against scapegoating.
54 RoSPA too supported the principle of a board champion while stressing the importance of ensuring that the appointment did not diminish collective responsibility. It was essential that the champion had the necessary power and competence to carry out the role and influence with board colleagues.
55 CCA, in developing its arguments for the imposition of legal duties on directors, wanted to see a shift of the criminal justice system away from a concentration on assessing the conduct of companies and more on assessing the conduct of company directors. Such a sea change would assist in : identifying the real offenders; locating blame where it really lies; furthering 'individual' responsibility and accountability, and ; promoting deterrence.
56 It is clear from the responses received that there was overwhelming support for taking forward the HSC recommendation contained in Action Point 5(b). It is proposed to revise paras. 17 and 18 of the draft to bring out more clearly the collective responsibility of the board and the critical role played by the Chairman and/or Chief Executive in ensuring risks are properly managed and that the named director has the competence, resources and support of other board members necessary to carry out their role.
57 Almost 70% of respondents, including UKPIA and the British Retail Consortium, considered that the Annex to the code clearly explained the main legal responsibilities of employers.
58 It is proposed that Annex to the code should go forward as consulted on.
59 Almost two-thirds of those responding did not foresee difficulties in applying the code to their own organisation's structure and management systems and ensuring compliance.
60 One-third of respondents called for more explicit advice on the applicability to organisations, particularly public and voluntary sector bodies, with committee rather than board structures.
61 Half of all charities and voluntary bodies and three-quarters of all local authorities/local authority bodies responding foresaw difficulties in attempting to apply the code to their own particular organisations.
62 It is proposed to supplement the code, as soon as possible, with additional guidance to assist those organisations, particularly in the public and voluntary sectors, to implement the recommended actions.
63 Almost two-thirds of respondents considered that the draft code successfully addressed the health and safety responsibilities of directors in complex organisational structures. .
64 Two-thirds of employers and trade associations who responded were satisfied with the draft code in this respect. EEF and UKPIA both flagged that many multinationals were being managed on a world-wide or pan-European basis. The code needed to recognise that direction and ultimate responsibility for health and management may well lie with a board outside of the UK and therefore outside of HSE's jurisdiction.
65 It is proposed to supplement the code, as soon as possible, with additional guidance to assist directors in complex organisations to implement the recommended actions.
66 70% of respondents considered that the consultative document represented the different issues concerning directors' responsibilities very well or well. There were concerns from a small number of respondents that insufficient time had been allowed for the submission of comments. On this occasion respondents had eight weeks in which to respond rather than the recommended twelve weeks..
67 We have been able to accommodate most respondents who have asked for more time in which to submit their comments. In most cases an additional two weeks has met their needs. It is clear from information to hand that the foreshortened consultation period has not harmed the effectiveness of this consultation exercise.
Note : in some cases responses have been received from more than one individual in a responding organisation eg where responses have been received from more than one director. In such cases each response has been logged separately.