Now at present the situation is simple. If you are self-employed, you have a legal duty to ensure that you protect others from harm resulting from your work activity. This covers all self-employed people. It is pretty straightforward and it works. There is no confusion and it means that everyone is very clear that no-one can take risks with others safety or health, even if they are self-employed.

The Government now plans to change this so that any person whose work activity poses no risk to anyone else will not be covered. Now that may seem to be common sense – until you think about it for about 2 seconds.

When are you possibly going to be prosecuted under the existing Health and Safety at Work Act if you are self-employed? The answer is, if you injure someone or put them at risk of injury. The only time the Health and Safety at Work Act can be used is in circumstances whereby the person does put another person at risk. So why change it?

Every self-employed person is still going to have to do a risk assessment and if there is no risk there is no problem. That will not change. What will change is the confusion that it will bring.

Anyone who has tried to explain the change to others will know that it is not easy to get your head around what it means. Self-employed people will be unsure if they are covered, or presume that they are not. Even many people that clearly do pose a danger, such as self-employed scaffolders or electricians will think that they now have nothing to worry about so there is no need for any safety precautions.

Worse still people who control the workplace where self-employed people work (often bogus-self-employed) will wrongly think that they do not have any duty of care to them. Self-employed people who employ others may interpret it as meaning that they are exempt from the law.

Given that the most dangerous industries all have a high proportion of self-employed people in them (agriculture, construction etc.) anything that confuses the situation is a recipe for disaster. The government will say that these people in dangerous industries are not exempted and if you ask who is exempted they come up with examples like a novelist who works in their own home.

Yes, but the novelist in their own home is only covered now if they put someone at risk. That will not change. What will change is that hundreds of thousands of other people simply will not know whether they are covered. It is a recipe for confusion and misunderstanding.

This stupid and dangerous proposal is being done in the name of reducing burdens. How it is going to remove any burdens is beyond me. It does not actually change the situation for those who genuinely do not pose a risk to others and only creates complete confusion for all the other self-employed.

Instead it is an ideological move from a government that is solely interested in deregulation, or even worse, the illusion of deregulation, regardless of the cost. No-one is claiming that it will do anything to improve health and safety and it certainly is not going to simplify anything.

Once last thought on the matter. There is currently a fatality rate of 1.2 per 100,000 for the self-employed as against 0.5 per 100,000 for employees.

The decision to part-privatise the so called “Nudge Unit”, otherwise known as the Cabinet Office Behavioural Insights Team, has been making headlines this week, but few of the articles have actually looked at what the unit does and whether it works.

The “Nudge” concept is important to anyone interested in policy-making because the Tories have moulded it in their own image and used it as an alternative to regulation. Basically they claim that you can change behaviour by nudging people into making the best choice and this is preferable to making laws.

Now a lot of so-called “nudging” is simply common sense, and hardly new. Much of the work of the unit has been more “blue-sky thinking” than behavioural change. In fact if you look at a list of what has come out of the unit it would probably best be placed under the heading “glaringly-obvious”. For instance if you write to people to tell them that if they don’t pay their road tax they will lose their car then people are more likely to pay (especially if you include a photo of their car). However some of the ideas have been a bit less sensible – such as giving fake personality tests to job-seekers.

The philosophy of “nudge rather than regulate” has had an impact well outside of the “Nudge Unit”, such as in the health and safety world where the government is ensuring that the HSE turn as many Approved Codes of Practice as possible into guidance. They have also argued against a number of proposed European regulations on the grounds that the same can be achieved through guidance. As a result the level of regulation is being constantly eroded by a government that seems incapable of understanding that part of its role is to protect the weak from the strong, and that health and safety is not about nudging employers (and workers) in the right direction, but instead is about setting legal minimums that no-one can fall below.

What we have now is a health and safety strategy faced on an untested ideology with workers as the guinea-pigs. Yet when it comes to making a difference there is no one correct answer. To change behaviour we need a mix of regulation, enforcement, guidance and support. It is not about philosophy and ideology – it is about what works.

So does “Nudging work”? In some cases they can possibly argue that the unit has made a difference, but would regulation have made a bigger difference? One of the unit’s proposals was to test government policies in “randomised trials”. (and backed by one of my heroes and scourge of the drugs industry Ben Goldacre). This sounds great until you think about it. Unfortunately, all this is likely to mean is that they will compare the outcomes of a “nudge” initiative with what is happening now while what you should be doing is comparing the likely effect of nudging with the likely effect of other alternatives such as a new law.. So it might be possible to test the effect of the HSE guidance on director’s duties with the period before there was any guidance on director’s duties and say – “Yes, the guidance has made a difference”, but that is not the test. The test should be which would make the most difference, guidance or a law imposing a duty on directors?

What evidence there is seems to imply that “Nudging” on its own is not the answer. The House of Lords Science and Technology Committee looked at the impact of “Nudging” and found “precious little evidence” for any effective impact. As the chairs said “Behavioural change interventions appear to work best when they are part of a package of regulation and fiscal measures”

…and of course let’s not forget the other reason for the part-privatisation of the unit. It is to set the scene for their policy of privatising anything that moves. The PCS union said that a recent opinion poll suggested “only 16% of civil servants were even ‘interested in exploring the idea’ of becoming a mutual” so it is hardly surprising that they are trying it out with a tiny unit of handpicked academics and specialists like this.

It is often said that the British care more about their dogs than their fellow humans and here are some statistics that seem to bear that out.

The RSPCA have just published their prosecutions statistics. Last year they secured 4,168 convictions against 1,552 people, with a conviction rate of 98%. This is a great achievement from a body that employs less than 1,700 people, and good luck to them.

Let’s compare this with the statistics for people who kill and injure workers. Across Great Britain, 680 cases were prosecuted for health and safety breaches in 2011/12. These cases led to 630 convictions, with a conviction rate of 93%. This is for cases brought by both the HSE and by Local Authorities. The HSE, which managed to secure 506 of these convictions, employs around twice the number of staff as the RSPCA.

It terms of imprisonment for killing workers the figures are even starker. Following an RSPCA prosecution, 86 people were sent to prison last year for breaching animal protection laws. In comparison, according to the HSE website, “5 people have been sent to prison for health and safety offences since January 1996.” This is slightly more than one every three years.

What does it say about a society that sends 200 times more people to prison for abusing animals than it does for risking the health of their workforce?

And it is not like the problem is minor. At least 20,000 people die every year because employers break health and safety laws. The vast majority are a result of cancers and lung diseases caused by exposure to asbestos and other carcinogens and dusts. These are all preventable. So are the 212 000 injuries that lead to workers having to take time off work every year.

Now I do not think the solution is to turn the HSE into a charity and seek donations to “save the workers”, nor is it to send huge numbers of employers to prison, but clearly the balance is wrong, and the gap is likely get even wider as the government continues to slash the number of inspections (Local Authority inspections have fallen by 86% in 3 years). The Government needs to see the crisis in worker protection in proportion and start taking serious action against those criminals who are getting away with killing and injuring their workforce.

Sunday is International Workers Memorial Day and people will be commemorating the dead in well over 100 events which are taking place up and down the country. In addition there will a minutes silence in many of the workplaces that are operating that day.

Events such as the collapse of the Rana Plaza building in Bangladesh earlier this week show that there is still a desperate need for such a day. First indications are that the factory was in blatant breach of safety laws, just as previous factory disasters have been caused by employers ignoring fire regulations.

According to ILO estimates, there are 2.34 million occupational fatalities every year, of which 321,000 are due to accidents. The remaining 2.02 million deaths are caused by various types of work-related diseases, which correspond to a daily average of more than 5,500 deaths. This means that far more people die through work than die in wars every year.

Yet this is not a issue just for countries like Bangladesh and China, it is still very much an issue here. Let’s not forget that, by the very lowest estimates, over 20,000 people die prematurely in the UK every year because of their work – and the true figure is likely to be much higher. Almost half of these die as a result of cancers, but another 4,000 are killed by other lung diseases. Yet most of these deaths could be avoided if employers simply obeyed existing laws.

So in a year when we have seen the biggest reduction in health and safety inspection activity in living memory, let us remember that Workers Memorial Day is not just a sombre day of reflection and respect. It is also a day for anger! Anger over all the needless deaths that are being caused now and in the future by government policies that either turn a blind eye to wrong-doing or even encourage it.

Whether it is in Bangladesh or Britain, the problem is the same. So is the solution!

Yesterday the Enterprise and Regulatory Reform Bill received Royal Assent. This bill (now an Act) contains a number of off-the-wall proposals but one of the worst is the change to the ability of workers to claim compensation if they are injured.

At the moment you can claim compensation if you are injured because the employer has broken the law. Basically if you are injured because an employer has not guarded a machine that the law says should be guarded, you are entitled to compensation. Well not any more. Now you have to show negligence. It is a bit like if a burglar enters your home to burgle you, and when they are nicking your TV they knock over a valuable vase and the insurer demands that you prove that the burglar was negligent in knocking over the vase.

In one simple swoop they have reversed a hundred and fifty years of law, and the only reason? Because they want to remove the rights of workers to claim compensation. This is nothing about fairness or justice. It is about bare, raw political ideology from the anti-worker pro-business Tory hawks.

Now if you read the press or listen to politicians (of all parties), there is near unanimity that compensation claims are out of control and need to be reined in. This is rubbish. In fact compensation claims by workers have been falling for over 15 years and are usually considered to be lower than in most other industrialised countries. A TUC report a few years ago showed that only about 1 in 8 workers who is likely to be liable for compensation actually claimed.

Also compensation claims help drive improvements to safety. If employers and insurers are forced to pay out after an injury or illness they are more likely to try to prevent it happening again. In fact given the collapse of health and safety inspections under this government, compensation claims and unions are virtually the only drivers of health and safety in this country.

The Government claims that they have changed the law because it was recommended by the Lofstedt report into health and safety regulation. This is a bare-faced lie and Professor Lofstedt has made it clear that this is not what he recommended. In fact he recommended that the government look at the fairness of a small number of cases where employers were liable for compensation where there was no fault because the regulations imposed a strict liability. While the TUC did not believe that this created a problem and it was only fair that workers should receive compensation if they are injured because of someone else’s actions, this was a very different proposal from the one that the Government introduced.

Without any consultation they introduced this wide-ranging proposal on the last day of the Bill’s discussion in the House of Commons and without any warning or consultation. When the Lords reversed it the Government simply put it back in, and finally, this week the Lords backed down in a vote which took place in a half empty chamber at 11:15 at night.

It is worth reading the transcriptions of the debates. The government did not even bother trying to answer the points raised by the opposition. They simply trotted out the usual drivel about “compensation culture” “burdens” and continued to insist that this was what Lofstedt had recommended. I think the most disgraceful comment came from the Minister who insisted that the proposal “is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions”. This is completely untrue. It is about protecting law-breakers. In the past, no-one could be successfully sued under the civil liability provisions unless they had broken the law and it is that which is being taken away. These criminals are now being portrayed as “employers who have done nothing wrong”.

It is clear to anyone who reads the debate that the opposition (especially the points made by the former health and safety minister Lord McKenzie) had all the arguments and the government did not even really bother to put up the appearance of a fight. They knew they had the numbers and would win anyway, and as expected the Tory Peers traipsed through the lobby alongside the Lib Dems, who gave another insightful display of the progressive influence they are having on the policies of the Tories by backing them to the hilt.

The bill may now be law but that is not the end of things. Unions will continue to support workers and to take compensation claims and are likely to challenge this ridiculous and reactionary law by taking a complaint to Europe on the grounds that workers are being denied any recourse to compensation when they are injured because an employer has committed a criminal act. This battle may have been lost but the fight goes on.

A shocking report was published today that exposes the extent that construction companies were involved in illegal activity for over a decade, by blacklisting workers for being in a union or for speaking up about health and safety.

The interim report by the Scottish Affairs Committee reveals damning evidence of the nature of the blacklisting and the extent that companies would go to keep it secret. Entries on the blacklist, held by a shadowy organisation called the “Consulting Association”, reveal that people were being denied work because of an entry that alleged the person had an interest in health and safety. Examples include:

“While at xx, drew H&S issues to the attention of site manager been moved with two others (to avoid suspicion)”

“After taking on showed signs of militancy over safety“.

Yet despite the clear irrefutable evidence of wrongdoing, I sat through evidence sessions where the Chief Executives of construction companies were still denying that they ever blacklisted anyone for anything, let alone for health and safety reasons. The clear message they all gave was that “we would never blacklist anyone for health and safety reasons” and “health and safety is a top priority for us” (even from serial offender Balfour Beatty – see my earlier blog).

In fact even now the companies have shown no sign of remorse. No-one has fully admitted what they did and said they will take action to redress the damage they caused. No-one has shown any sign that they have any regret for destroying the lives of hundreds of workers, in fact quite the opposite. They are fighting tooth and nail so they do not have to pay a penny of compensation for their illegal actions.

The effect that the action of these companies had on safety on constructions is immeasurable. People who were raising health and safety issues, or who were volunteering to become health and safety representatives, found themselves banned from working in the industry.

Many of the companies exposed in the report are household names and between them they hold hundreds of millions of pounds of public sector contracts. We are still putting money into the pockets of these criminals while the government hides its head in the sand and claims that there is no evidence that blacklisting is still going on (of course there isn’t any evidence – they haven’t looked for it).

At least the Scottish Government have gone as far as saying they will work with unions on guidance for future procurement processes and public contracts which is a start.

This is only an interim report and a further report, with recommendations will be published at a later date. You can read what the Committee had to say here.

While unions have a proud record of protecting members from harassment and bullying at work perhaps we forget that many of our members face harassment by people outside their work, even though it is work related. Examples are social workers and medical staff scapegoated by the tabloids after child protection cases or care workers criticised because of the failings of their employer.

Lucy Meadows was a primary teacher in Accrington. Lucy was raised a man and had started work at the school while still a man. Last year she notified her head that she was to undertake gender reassignment and wanted to return to school after the Christmas holidays as Lucy Meadows. The head teacher was apparently very supportive and told pupils that that when they returned after the holidays, the teacher they had known as Nathan Upton would then be known as Miss Meadows. He wrote to parents to say that “Mr Upton has recently made a significant change in his life and will be transitioning to live as a woman.”  According to reports, most parents were supportive.

Within days the story made headlines in the tabloids. The press camped out on Lucy’s doorstep and outside the school. She complained she could not leave the house by the front door. Reporters contacted parents to try to get negative comments and they were offered money for pictures of her.

It is difficult for us to imagine what life is like under that kind of pressure.  It must be like living under siege, not being able to trust friends, being scared to go to the shops. Even fearing what the next mail will bring or who the next phone call will come from.

Yet what had she done? Like many others she had felt that she was in the wrong body and wanted to change that. It was very much a personal decision and one which had no bearing on anyone else. She was also remarkably brave by deciding to stay at the same school after her transition. Many others would have instead chosen to change jobs and make a new start. Lucy did not. By staying she was saying she had nothing to be ashamed of and what she was doing was perfectly natural for her. This made her a hugely positive role model for the children.

This week Lucy was found dead in an apparent suicide. I do not know if this was a result of the harassment by the press or not. To a certain extend it does not matter. It is quite evident that this level of intrusion is going to have a devastating effect on a person’s physical and mental health and there was no justification for any intrusion into Lucy’s personal life.

Twenty or thirty years ago lesbian and gay teachers faced the same “exposure”.  Now we find this happening to trans people. And like with gays thirty years ago Lucy had no protection from the law or the regulators. The harassment of Lucy happened post – Leveson, after the press were assuring us that they had changed. They still insist that any form of regulation is an attack on their right to free speech, but Lucy Meadows had rights as well and those were trampled on by these very same newspapers.

The principle of a “free press” cannot be used as a front for allowing newspaper editors to spout what can only be described as bigotry and hate with no regard for the consequences.

Over the last thirty years we have managed to change the climate in respect of lesbians and gays, much of that was because of the work that was done by unions. Unions have also been instrumental in getting support for trans people in the workplace. As a result people like Lucy have found the courage to be open about their decisions. Unfortunately it is clear that we have a long way to go.

Lucy, I am sorry we were not able to do more to protect you when you were alive. We can however try to stop it happening again. At the very least sign the petition to the Daily Mail demanding an apology for the disgraceful piece by Richard Littlejohn.

There is also a vigil outside the Daily Mail offices at Northcliffe House, 2 Derry Street, London W8 5TT  on Monday 25^th March at 6:30.

I am sure you all know the background. A shady outfit called the Consulting Association were selling information on trade unionists, activists, and safety reps to construction companies who then refused to employ anyone one the list meaning that many of them were out of work for years. Four years ago the Information Commissioner raided the company and shut it down.

Balfour Beatty was one of the biggest players. The Information Commissioner issued enforcement notices to 14 companies of which six were Balfour Beatty companies.  The Director of the Consulting Association, Ian Kerr, in his evidence to the Committee last year had said that “The Balfour Beatty companies were particularly hard-nosed”. In fact the Balfour Beatty companies paid the Consulting Association over £50,000 and made over 15,000 searches in the four years before it was closed down.

I went along because I was intrigued to find out what they had to say for themselves. After all they had been caught red-handed illegally giving and receiving information that they used to keep people out of work.

Basically their evidence can be summed up like this. “We are very sorry for what we did and the damage it did and we can assure you that it is historical and procedures are in place to stop it happening again. However we only did it to stop disruption caused by civil disobedience, harassment or bullying. We never blacklisted anyone for just being a trade unionist or raising a safety concern.”

Listening to what he was saying I was not sure what he was sorry about after all he seemed to be saying he had not done anything wrong. The committee seemed to have the same doubts. As the chair said “I am unclear are you saying you are sorry for what you did or sorry you got caught?”

The Committee asked for examples of what this disruption and civil disobedience was that had prevented the company working. Unfortunately Mr Peasland did not have any. How many people did you blacklist? “I don’t know”. How much information on people did you feed back to the Consulting Association?  “I don’t know”.  Who in Balfour Beatty decided to use the Consulting Association? “ I don’t know”. Who decided to feed information to the Consulting Association?” I don’t know”……..You may be beginning to detect a pattern here.

In fact the main theme for the afternoon seemed to be what Mr Peasland did not know. For instance he was not aware of any meetings involving the police or security services and when the chair said that the committee knew there were as they had seen the evidence, Mr Peasland replied that he had no record of it. He also was not aware of any information being kept on environmental activists although this had been revealed at the last evidence session and had been in most newspapers.

Sometimes Mr Peasland would say he could not give information because it was legally privileged or the documents were “put beyond use” (whatever that means).

When pressed on whether they discriminated against safety representatives Mr Peasland seemed quite indigant. No-one would ever be victimised for “genuine” safety concerns, only if they were “hiding behind health and safety”.  He stressed time and time that safety was a top priority and they had an exemplary safety record. When I got home I looked up their exemplary record on the prosecutions database and found that over the period since 1999 the Balfour Beatty group of companies had 16 prosecutions, 9 prohibition notices and 7 improvement notices served on them.

Despite all the evasions and “don’t know”s, at times the true picture did begin to creep through. The star of the afternoon was the Conservative MP Simon Revell. He tried time and time to find out who knew what and why Balfour Beatty had no information about a service they used for well over a decade. It finally became clear that, far from having any moral objections around the principle of blacklisting, Balfour Beattie only gave it up when ordered to do so. Mr Peasland even admitted that they got a service from the Consulting Association that they were happy with, and his concern was over the methodology, not the principle.

The apology to those they had blacklisted also looked a bit less sincere when  Mr Peasland was asked why they were strongly defending all the compensation cases that had been brought against the company if they were sorry for what they did. However according to Mr Peasland that is apparently a matter for the courts, not Balfour Beatty (whose moral credibility was, by now, beginning to look as though it had crawled off into the nearby River Thames).

The last round of questions were about why had no-one pointed out at the time that they were clearly breaking the law? Why had no directors, lawyers or senior managers been sacked? Finally in exasperation the chair asked “How can workers have confidence that things have changed when the same managers are still working for the company and no-one has been sacked or disciplined.” Mr Peasland prevaricated a bit more until the chair butted in and asked if his defence was that they were “only obeying orders”. Without a hint of irony the answer came back “Yes”!

Looking back at previous sessions of the Committee what comes across is that Balfour Beatty are no worse and no better than any of the other companies that have given evidence. There is a collective failure to accept responsibility or to be fully open. I am sure that Mr Peasland genuinely did not know the answers to the questions he was asked, but that is possibly because he did not ask his managers and lawyers for the information in advance. That way he can honestly say he did not know.

You will be able to read the full three hours transcript online on the Scottish Affairs Committee website in the next couple of days (or even watch the recording). I have to say that the Committee have done a fantastic job at pursing this issue at a time when the Government has collectively had its head in the sand but given the national scandal that has been uncovered this needs a Leveson type Inquiry to force all the information out from the perpetrators of this injustice.

Now the TUC would be the first to say that they want growth, after all we have been calling for an economic strategy that does just that. We are also against regulations that do not work.  However this consultation goes much further than that. It says that the benefits of any regulations to workers or the public must be weighed up against the effect they have on growth.

For years we have had “cost benefit analysis” imposed on regulation-making. This means that the benefit to workers health is already measured against the cost to business. This proposal takes this even further. It says that legislation should actively “promote growth”.

There will be those that say that good health and safety saves business money so we have nothing to worry about. That can be true in that a good safety culture prevents sickness absence and higher insurance costs, but the real cost of the failings of an employer is to the worker, their families and to the state which has to pick up the tab when companies get rid of their injured workers. This is particularly the case with occupational diseases.

The TUC has never depended on the argument that health and safety legislation saves money for businesses because, even if that is true in most cases, legislation should be there if there is a need to protect workers, not just if it is of economic benefit. The bottom line is that no employer should be able to kill or injure their workers – full stop. Not just if it is uneconomical to do so.

The Health and Safety at Work Act does not impose duties if they are affordable, or profitable. It imposes duties “as far as reasonably practical”. If, as is often the case, employers manage to save money as a result, that is great, but it is not the criteria that we should be using.

High quality, safe work will help promote growth, but it is a pleasant addition to the greater benefit of having a happy healthy population. To achieve that we need strong, properly enforced regulation.

If on the other hand we believe that regulation is simply there to promote business and help profitability then we might as well just hand over regulation-setting to the CBI. Mind you, they seen to be almost doing that, as the press release announcing the consultation exercise asks for the views of business, but not of workers or the public. That says it all really.

The consultation can be accessed here.

Tomorrow the House of Lords is to vote on one of the most important attacks on workers rights to compensation for many years. Last year the government sneaked in a new clause to a Bill called the Enterprise and Regulatory Reform Bill. It did it with no consultation and on the last day before the Bill left the House of Commons. The new clause seeks to amend the Health and Safety at Work Act 1974 by removing the existing right to compensation where an employer breaks health and safety law. Instead the worker will also have to show negligence, moving the burden of proof to the injured worker.

The Government claims that it is implementing a recommendation contained in the review of health and safety regulation by Professor Ragnar Lofstedt. Yet, only last month, Professor Lofstedt highlighted the fact that the Government had gone much further than he proposed. His report said:

“My understanding is that the proposed amendment to the Health and Safety at Work Act reverses the current position on civil liability. This means that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove that the employer has been negligent. The approach being taken is more far-reaching than I anticipated in my recommendation.”

Professor Lofstedt had simply recommended that regulatory provisions that impose strict, (not civil), liability should be reviewed by June 2013. He took the view that regulations should be qualified with “reasonably practicable” where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions. He did not recommend a blanket removal of strict liability from health and safety law. The review that he recommended does not seem to have been conducted beyond a simple impact assessment by officials and there was no consultation on the proposals before they were introduced in the amendment.

Without being able to reply on the law that if a employer breaks the law they should be liable for any injury or illness that results from the breach, the injured person would be obliged to rely only on the law of negligence to claim compensation. In some cases this is difficult to prove. The result of this is that far fewer workers will be able to gain compensation, even after their employer has broken the law. This moves the cost of any accidents from the employer to the worker.

The amendment will not change the fact that the employer will have broken the criminal law. They will still be liable to prosecution in the court. All that changes is that the victim will now be denied the right to compensation.

Since 1898 the law on claiming compensation for workplace injury, where the employer has breached their statutory duty, has been very clear. This change will not only put the clock back over a hundred years, it will create considerable legal uncertainty.

Clearly we are very concerned about the effect that this amendment will have on the ability of employees to claim compensation after an injury. But the Bill will also have a negative effect on preventing injuries in the workplace as compensation claims have always helped to drive forward improvements to help ensure that such incidents are not repeated.

So if you know any friendly (or even unfriendly) Peers then get an email off to them today…