Tag: health and safety

Risk assessment at work during the coronavirus pandemic and while ‘living with’ COVID-19: What can England learn from Sweden?

Posted on by foluke.adebisi

by Peter Andersson, University of Gothenburg and Tonia Novitz, University of Bristol Law School

The crisis which arose in March 2020 regarding the coronavirus pandemic immediately centred on risk. Predictions had to be made swiftly regarding how the virus would spread, whom it might affect and what measures could be taken to prevent exposure, including in the workplace. As part of a broader Swedish Research Council project (2018 – 2022), we have conducted a comparative study of English and Swedish responses to the pandemic, focussing on their treatment of risk.

It was apparent that the two countries took very different approaches to COVID-19. For example, ‘lockdowns’ like those implemented in the UK were not imposed in Sweden, although Swedes were requested to work at home as much as possible.

We recognise that risk assessment plays two key roles. One is pre-emptive, namely to prevent harms rather than only compensating for such harms after the fact. The second role is defensive, protecting an employer from liability by demonstrating that due care was taken. We have found that the Swedish approach is more pre-emptive, while in the UK risk assessment is used more defensively in criminal and civil litigation.

The pre-emptive role of risk assessment, or the scope of any ability to prevent harms, is inherently limited by who is identified as the legitimate subject of risk assessment: ‘employees’, ‘workers’ or ‘independent contractors’? This has been the subject of a judicial review action brought by the Independent Workers’ Union of Great Britain (IWGB) against the Secretary of State for Law and Pensions. A significant outcome of the judgment delivered by Chamberlain J, which sought to implement the European Union (EU) Framework Directive on Health and Safety and the Personal Protection Equipment (PPE) Directive, was the extension of entitlement to PPE to so-called ‘limb(b) workers’ (as designated under UK statute) as opposed to merely ‘employees’. Moreover, the judgment recognised the right of ‘workers’ to refuse to work where there is serious or imminent danger under section 44 of the Employment Rights Act (ERA) 1996 without detriment. However, only those workers deemed ‘employees’ could claim protection from dismissal under section 100 of the ERA.

By way of contrast, Swedish work environment law has long recognised that a broader range of persons qualify for health and safety protections as ‘employees’ or ‘equivalent to employees’. A specific project was created extending protections to self-employed platform workers. After legal challenges in which employers successfully argued that they did not have ‘employer responsibility’, the Swedish Work Environment Authority abandoned this scheme, but a proposed EU Platform Work Directive (if adopted) may enable its reinstatement. In this sense, EU law has a significant effect on the coverage of risk assessment, which raises important issues regarding protection of those at work in the UK post-Brexit.

There is also a vital difference between England and Sweden in terms of the statutory funding and powers of relevant supervisory bodies. While both countries have comparable statutory agencies engaged in promoting assessment of risk by employers and its amelioration, the UK Health and Safety Executive (HSE) and the Swedish Work Environment Authority (SWEA), there were notable disparities between their capacities in the context of the pandemic. Both actively advocated that employers undertake additional risk assessment during the pandemic. However, funding of the HSE had declined dramatically in the years preceding the pandemic (from £331 million in 2009/10 to £226 million in 2019/20), such that a temporary injection of £14 million in May 2020 could not readily revive its supervisory functions, nor did the HSE intervene with detailed advice as regards what risk assessment in English workplaces should entail. Instead, it appeared that the HSE had ‘gone missing’. It was the English Government that issued sometimes questionable guidance on what was ‘COVID-secure’, with prominent advice from what was ‘Public Health England’ (since October 2021 replaced by two bodies, the UK Health Security Agency (UKHSA) and the Office for Health Improvement and Disparities, which places health-related issues more directly under UK Government control). Risks identified in such guidance tended to be solely physical and not psycho-social, despite forms of stress created by combined teleworking and home schooling, especially for women. It remains probable that in England, few civil and criminal cases will be brought, given that employers did follow the bare bones of this guidance. In this sense, risk assessment in England has served its defensive function for employers, but the rates of deaths and long-COVID now being reported suggest that the workforce did not go unharmed.

Finally, there is a significant difference between England and Sweden regarding the extent of collective worker representation promoted in OSH. In publications issued by the HSE during the pandemic, recommending that employers ‘talk to’ their workers, statutory requirements to inform and consult workers were glossed over. By way of contrast, the SWEA received more complaints and carried out more inspections, prompted by the active statutory role which trade union representatives play. There are wider ranging entitlements in Sweden to call for a stoppage of work until OSH issues are addressed and these were deployed in the context of the COVID-19 pandemic on 328 occasions.

In February 2022, most COVID-19-related public health restrictions ended in England and Sweden, despite criticism from scientists and medical professionals, giving further cause to reflect on different responses to management of risk assessment and their effects. While coronavirus variants spread globally and other issues concerning viral contagion remain, we consider there remain compelling arguments for legal, policy and institutional reform that deserve continued attention.

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Conclusions from the Workshop on Labour Behind the Food System

Posted on by lee.mcconnell

On June 14th 2019, a group of academics, union representatives, civil society organisers, and members of food-related NGOs and think tanks gathered in Bristol along with the United Nations Special Rapporteur on the Right to Food, Professor Hilal Elver. The intention was to look closely at the condition of work and workers behind the UK food system. Throughout the day, we shared testimonies, experiences and accounts concerning the main challenges and obstacles faced by workers from farm to fork, including beyond the boundaries of the United Kingdom. We discussed trafficking, modern slavery, low wages, availability, technological innovation, migration, and several other issues that affect and characterize the life and the future of people who make our food possible. We have closely followed the ongoing conversations around the UK Food Strategy, including a consultation that opened just last week, along with the parliamentary debate around the Agricultural Bill and the proposals on the new post-CAP domestic settlement for agriculture. We have also been particularly attentive to the increase in household food insecurity in the country, in particular among farmworkers, farmers and workers within the food sector. It is striking that hunger, obesity and malnutrition are increasingly felt among those who produce and transform food.

In light of our research, experiences and conversations, we have listed below some of the main conclusions arising from our workshop. There is no food without labour, and because a healthy and justly rewarded workforce is essential to a sustainable food system, we consider that these elements should inform the whole process of the UK food strategy. When it comes to labour, the future of food is not only about a skilled workforce that knows how to use technology. It is about: an integrated approach and greater coordination within the food system; attention to the bottlenecks; a broad notion of food workers; intersectionality; transparency and visibility; protection, respect and fulfilment of the workers’ human and labour rights; access to justice and reliable enforcement;  and  fair access and use of technological innovation. (more…)

Closing the Gaps: Health and Safety in the Home

Posted on by legalresearch

By Dave Cowan, Professor of Law and Policy (University of Bristol Law School).

Following a commission from Shelter, the housing charity, Dave Cowan and Edward Burtonshaw-Gunn, University of Bristol Law School, and Helen Carr and Ed Kirton-Darling, University of Kent Law School, conducted research into the law and practice around housing standards.  Their conclusions – which draw on 940 responses to a questionnaire from professionals, landlords and occupiers – make for stark reading about the deficiencies in our current law.  This is the Executive Summary to the report.  The full report can be found at http://www.bristol.ac.uk/law/research/grenfell/.

The law relating to health and safety in people’s homes is piecemeal, out-dated, complex, dependent upon tenure, and patchily enforced. It makes obscure distinctions, which have little relationship with everyday experiences of poor conditions. Tenants wanting to remedy defects face numerous and often insurmountable barriers to justice. The law needs to evolve; no longer should occupiers be treated as posing health and safety risks; instead they should be treated as consumers of housing with enforceable rights to ensure minimum standards are adhered to. The state needs to accept its role as the primary enforcer of those standards.

Not only does the law require reform, there also needs to be a cultural change, so that those responsible for the health and safety of occupiers become pro-active in fulfilling those responsibilities.

We recommend a new Housing (Health and Safety in the Home) Act which is tenure neutral, modern and relevant to contemporary health and safety issues, and which encourages and provides resources for pro-activity by statutory authorities. In particular, the Act should

  • Strengthen duties on local authorities to review housing and enforce housing health and safety standards
  • Introduce a legal duty to review and update all guidance relating to health and safety in the home every three years
  • Provide routes for occupiers to require local authorities to carry out housing health and safety assessments
  • Remove unnecessary legal barriers preventing enforcement action being taken against local authority landlords and remove unnecessary procedural barriers which undermine the current regime
  • Consolidate and up-date existing law
  • Place clear responsibilities on bodies for breaches of fire and building regulations
  • Provide routes for occupiers to hold landlords and managers to account for fire safety provisions
  • Strengthen remedies against retaliatory eviction

Such an Act, either working alongside or incorporating a Homes (Fitness for Human Habitation) Act, would not only improve health and safety outcomes for occupiers, it would signify also that, as a society, we accept responsibility for those standards.