The Health and Safety Executive, the HSE, has published its strategy for managing health and safety risks over the next 10 years, designed to reflect the changing nature of the world of work. It is aimed at reducing work-related ill-health, with a specific focus on mental health and stress. We’ll consider the relevance of that to HR.
It is called ‘Protecting People and Places’ and outlines five strategic objectives for the regulator which include expanding its focus beyond worker protection to support the UK’s move towards net zero and taking on additional responsibilities - the provision of a Building Safety Regulator and an expanded remit on chemical regulation.
IOSH reports on this and quotes Sarah Newton, HSE Board Chair. She says the HSE’s ‘expectation and evidence suggest that most businesses have the necessary skills, knowledge and experience to manage safety risks for themselves,’ underlining the fundamental principle of the HSW Act that ‘those who create risks are best placed to manage them’.
Our health and safety team comment on this in their article for Out-Law. Kevin Bridges says:
‘By highlighting that mental health with be a key area of focus, the HSE is sending a clear message to employers – make sure you properly assess where you currently stand in terms of the risks and mitigations you have in place in relation to both mental and physical wellbeing and put in place appropriate action plans tailored to your particular business.’ He said it is ‘only a matter of time before we see enforcement action taken by the HSE in this area.’
So, let’s consider that with one of the lawyers in the health and safety team. Zoe Betts joined me by video-link from Manchester to discuss this. I started by asking Zoe what the regulator is wanting employers to do:
Zoe Betts: “Well in the same way, I suppose, that the HSE will expect an employer to assess the risks to an employee's safety in the traditional sense, traditional risks that could be relating to work at height, or work in an office, or work with machinery, I think the HSE is saying you cannot ignore the fact that the work you ask somebody to do, and the environment that you put them in, and the working practices that you expect them to undertake, could create a risk of work-related stress, anxiety or depression. So, risk-assess that in the same way that you would those traditional risks to safety, and then make sure that you have made appropriate adjustments. There is a myriad of different things that an employer could do but it's more about, I think, getting rid of the stigma of mental health, tackling the fact that it is an issue that affects hundreds of thousands, if not millions, of people, starting the dialogue, and talking to people, including HR professionals, about what are the things that would ease the pressure on people in the workplace? What is it about the environment that may be a stressor and what can be done to people's environment, or their role, or their hours, or the demands that are placed upon them, to make sure that we are not exposing employees to an unreasonable risk of a mental health illness because that's where the health and safety law could certainly come into play here.”
Joe Glavina: “We know the HSE does take enforcement action from time to time, but they’ve not done that yet for failures that are linked to protecting mental health safety. It looks as if that might be changing, Zoe.”
Zoe Betts: “Yes, I think that's right. I think historically there has been a real lack of action, if I can put it that way, certainly a lack of enforcement action from the HSE. They've had various management standards relating to stress, they’ve had various campaigns such as Working Minds, but they've been relatively reluctant to take enforcement action and I can understand that because, from an evidential perspective, it can be quite difficult to investigate and enforce such a multifactorial issue as mental health. I think we would all accept that work is likely to be one factor underpinning the state of somebody's mental health but there are equally quite disparate and private issues relating to somebody's upbringing, relationships, family situation. So, the HSE may well have found it a difficult issue in the past to explore but I think this new strategy is saying that they are going to be taking steps in that direction and I think we've got to remember that health and safety law is not predicated on the basis of causing actual harm. Health and safety law is based on creating a risk and failing to manage it and so what I think the HSE will be looking at when they visit employers, and they start to ask questions, they will be looking for evidence of how an employer is assessing the risk to employees mental health, and how well they are then putting in place mitigations and taking appropriate control measures and having the right dialogue with employees. If there is a complete absence of evidence that an employer is aware of this risk and is willing to do what's necessary to manage that risk that, in my view, could give rise to enforcement action. It might not be swift prosecution, it might be a slower spectrum, it could be that there is a notification of contravention letter with a fee for intervention invoice that demonstrates that the HSE have identified a material breach of the law, or the next step up from that in terms of severity could be an improvement notice, which again identifies breach of the law but gives the employer, the duty holder, a certain period of time in which to respond. Or it may be prosecution and what the HSE will be saying is that they believe they can prove the case beyond reasonable doubt that the employer has created a risk which it could, and should, have done more to manage. So it will be very interesting times and I certainly think that this is an area that employers really do need to focus on, if they've not done so already, and it is, again, a joined-up approach between health and safety and HR because so many of these issues are inextricably linked with employment issues and the type of work that our HR professionals will be very familiar with actually dovetails quite neatly with the health and safety side of things.”
That article by our health and safety team is called ‘HSE expected to turn focus to mental health and building safety’ and is available from the Out-Law website.
- Link to Out-Law article ‘HSE expected to turn focus to mental health and building safety’