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HSE have released their 2021 Health and Safety statistics which can provide a useful insight into the likely focus for enforcement activity over the coming year. In this article we look at some of the key headlines and takeaways and what this could mean for 2022.
HSE’s statistics are hot off the press. In this article, we draw out four key points of note.
Stress, depression and anxiety
Following the marked increase in work-related stress, depression or anxiety in 2020 this statistic remains high with 822,000 workers suffering with new or long-standing symptoms. Whilst this figure is slightly down on 2020’s figure of 828,000, interestingly the number of workers suffering from a new case of work-related stress, depression or anxiety has risen from 347,000 last year to 451,000. It is also notable that 70% of the ill-health estimated to have been caused or made worse by the pandemic is related to stress, depression or anxiety.
Whilst an area of focus for HSE for a number of years, HSE’s recently launched Working Minds campaign seeks to continue to assist employers in understanding and managing this risk. As we return to working from home again under the government’s Plan B, employers need to ensure that they have processes in place to safeguard and promote mental health. In particular, those who work in public admin/defence, human health/social work and education are likely to be under close scrutiny as these industries have the highest reported rates in the statistics.
For the first time this year the HSE have set out the impact of the pandemic as a separate risk factor impacting on worker health. Interestingly, the figures point to 93,000 workers suffering from Covid-19 as a result of an exposure they believe might have come from occupational exposure. One of the main considerations for both criminal and civil liability arising from the pandemic is that of causation (which is acknowledged in the statistics themselves). This is therefore a curious addition to the statistics and is likely to be a warning shot reminding employers to take the pandemic seriously.
Generally, there are challenges to regulators in using the Health and Safety at Work etc Act 1974 to enforce Covid-19 related breaches, and this is likely to be a factor in why we have seen very few Covid-19 based prosecutions arising so far. That said, as the pandemic nears its second anniversary and new variants emerge, HSE’s thus far tolerant approach to enforcing this risk area is unlikely to continue, with the potential for more stringent enforcement action in the future.
HSE will be continuing with their Covid-19 spot checks and it is worth remembering that they can issue enforcement notices where they consider that there has been a breach of health and safety obligations. This can have an obviously negative impact on reputation and business continuity, but should the notice itself be breached then this is a separate offence and provides a much simpler route to prosecution. Anyone served with such a notice should therefore seek urgent advice as to its implications, steps required to achieve compliance and to carefully consider whether an appeal is appropriate.
142 workers were killed at work in 2020/21 compared to 111 in 2019/20 and 441,000 sustained a non-fatal self-reported injury in 2020/21 compared to 693,000 the previous year. The most common non-fatal accident categories have shown little movement with slips, trips and falls remaining the highest cause of workplace injury accounting for 33% of injuries.
Industry wise, unsurprisingly agriculture, forestry and fishing and construction remain at the top of the table for the highest rates of workplace injury per 100,000 workers. Wholesale/retail trade; repair of motor vehicles and accommodation/food service activities also remain high. It is therefore likely that businesses operating in these sectors in particular will find themselves subject to closer scrutiny and tougher enforcement action. Manufacturing remains above the all industries rate but is no longer considered statistically significant.
There can be no doubt that the pandemic has had a huge and long lasting impact on the prosecutions brought by HSE/COPFS. Only 185 cases were prosecuted with a successful conviction this year, compared to 325 in 2019/20. However, for those cases prosecuted the conviction rate remains steadfastly high at 93%.
Significantly less enforcement notices have also been issued by the HSE, down to 2,929 from 7,075.
Whilst the courts system continues to suffer as a result of the pandemic and the backlog of unresolved cases is significant and ongoing, this dip in enforcement activity should be attributed squarely to the pandemic and not due to any change in attitude or policy by HSE in taking action against dutyholders who are found to be in breach of their health and safety duties.
The pandemic has caused delays in the whole process from investigation through to trial. This means it is even more important for organisations to ensure proper evidence and document retention policies are in place with effective crisis management plans to prevent evidence being lost over time. These plans need to be tested in a pandemic context to ensure they will be effective should the worst happen.
As the pandemic continues to change the way businesses operate the statistics illustrate a related shift in the types and levels of ill health and injury which affect the workforce. As we enter into a new year, with the onset of the new Omicron variant, businesses should take time to review their own workplace specific statistics, policies and procedures in light of this publication and ensure they identify relevant areas of risk for improvement. Where required, advice should be sought on adapting crisis management plans and processes to the new ways of working so that they remain effective.