Health enforcement: redressing the balance

Traditionally health and safety enforcement has focused much more on safety and less so on health. While the Health and Safety at Work Act 1974 enshrined obligations on employers to ensure the health of their employees and others affected by their work, historically this has been under-enforced when compared with enforcement of obligations relating to safety.

However, over recent years the HSE has shown an increased focus on health issues.

In 2016 the HSE launched a five-year strategy Helping Great Britain Work Well. A key focus of this strategy document was to tackle workplace ill health (including stress-related mental conditions).

HSE has continued its focus on health-related issues in its health priority plans which cover occupational lung disease, musculoskeletal disorders and work-related stress.

This commitment to work to improve work related ill health was repeated in HSE’s business plan for 2019/20 which listed a continued focus on tackling ill health as part of the Health and Work programme as one of its priorities this year.

This increased focus on health-related issues by HSE has also resulted in enforcement. In the past year there have been a number of prosecutions for health-related offences.

In February 2020 Harwoods Limited was fined £120,000 and ordered to pay costs of over £2,000 after pleading guilty to breaching regulation 7(1) of the Control of Substances Hazardous to Health Regulations 2002.

The HSE investigation found that the company had failed to ensure adequate control measures were in place to minimise exposure to hazardous substances in paints and this exposed their employee, a car bodywork sprayer, to the risk
of occupational asthma.

In August 2019 a drilling company and its director were prosecuted for failing to manage the risk of hand-arm vibration syndrome (HAVS) over a number of years. In addition to costs the company was fined £35,667 and the director was given a 12-week custodial sentence, suspended for one year, and a 12-week curfew.

Work-related stress and mental health have become ever more relevant in recent years. Following the Stevenson/Farmer report Thriving at Work, which was published at the end of 2017, and the introduction of the HSE’s Management Standards approach, it is clear that HSE is keen to ensure that employers take steps to tackle work-related stress and mental ill health.

The recent case in France, where former senior executives of France Télécom were given prison sentences after being found guilty of ‘institutional harassment’ and creating a culture of routine workplace bullying, should give UK employers pause for thought.

In September 2019, HSE issued guidance which stated that it will investigate if it receives “evidence that a number of staff are experiencing work-related stress or stress-related ill health (i.e. that it is not an individual case)”.

This is a clear indication that the HSE takes workplace mental health seriously, and employers are expected to do the same. While HSE has yet to prosecute an employer in the UK in relation to work-related stress or mental health, it is only a matter of time before it brings its first case.

The ongoing issues surrounding the coronavirus pandemic are a timely reminder of the importance of ensuring workplace ill health is managed effectively by employers. This relates not only to employers ensuring that employees remain physically healthy by complying with the latest government guidance, but also ensuring that employees’ mental health is considered during this stressful time.

Charlotte O’Kane is Associate lawyer at Pinsent Masons LLP