Will we see an upswing in health and safety enforcement after the pandemic?

With regulators and businesses returning to a more normal approach to health and safety after the pandemic, regulatory solicitor Terry Griffin and trainee solicitor Charles Mather from our regulatory team review the 2021 statistics from the UK’s health and safety regulator (HSE) and what they mean for levels of enforcement going forward.

The COVID-19 pandemic and the government’s response to it had a significant effect on the labour market in 2020/21. The virus presented new health and safety risks and challenges for business, and regulatory enforcement levels were affected as government agency workers, such as those at the HSE, worked from home.

HSE’s summary of statistics for health and safety at work for 2021 were compiled from HSE’s own records and the Office for National Statistic’s Labour Force Survey 2021. The statistics illustrate a decline in HSE prosecutions and enforcement actions as a result of the COVID-19 pandemic.

The reduction in enforcement actions during the pandemic

During the 2017/18 period, there were approximately 500 prosecutions brought by the HSE and its Scottish equivalent (COPFS). In contrast, during the 2020/21 period that figure dropped significantly to approximately 200 prosecutions.

HSE’s conviction success rate remained largely unchanged over 2017/18 and 2020/21 periods, in the region of 96 per cent. Accordingly, the drop in the number of successful prosecutions appears solely to be due to fewer cases being prosecuted by HSE during and because of the pandemic.

Similarly, in the 2017/18 period there were approximately 8000 enforcement notices issued by HSE and COPFS. Whereas during the 2020/21 period there were approximately 3000 enforcement notices issued.

HSE and COPFS fine totals dipped from approximately £70m during 2017/18 to approximately £30m during 2020/21 which is consistent with a drop off of approximately 65 per cent of cases prosecuted from pre-pandemic levels.

Fewer work-place injuries reported during the pandemic

In its technical report, titled: The Impact of the coronavirus pandemic on the interpretation of Health and Safety Statistics 2020/21, HSE examines the effects of the pandemic on reporting work-related injuries.

While it is necessary for a person to be in (or at) work to sustain a work-related injury, as the report helpfully points out, HSE identify that reduced RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations) reporting figures in 2020/21 may reflect reduced reporting by employers, in addition to the natural decline in work-place injuries during periods when national restrictions were in place. With some sectors completely closed down for periods during the pandemic this may also have an impact on the level of reporting. For instance, in accommodation and food services, the number of reports submitted to HSE in 2020/21 was down 64 per cent on the 2018/19 period.

HSE’s report goes on to highlight that there will likely be a long-term legacy for working conditions in many workplaces as a result of the pandemic, which will inevitably change patterns of work-related health and safety. It is too soon to say exactly how the world of work will evolve as the UK adjusts to the long-terms presence of COVID-19.

The report acknowledges that HSE’s own operations were impacted by the pandemic and cites those impacts as a marked cause of the decline in enforcement activity during 2020/21 and the pandemic, as evident in the statistics.

Stay vigilant, regulatory compliance matters

HSE’s technical report together with the summary statistics help to tell a wider story about declining enforcement across the regulated landscape during the COVID-19 pandemic.

With the pandemic all but at an end we are likely to see increasing enforcement and a renewed appetite to investigate and prosecute from regulators, including HSE.

In summary, businesses should review their policies and procedures and ensure risk assessments and other risk management systems are fit for purpose and up to date, and that any new or pandemic-related working practices are reflected and accounted for.

Harrison Drury’s regulatory team can draft health and safety policies tailored specifically to your business and assist in the defence and mitigation of HSE prosecutions and enforcement actions. To seek further legal advice and support contact the team on 01772 258321.