Guidance for the food and drink sector
‘How much more of Rome needs to burn before you put some kind of plan together?’ asked Neil Parish, Conservative MP and Chair of the Environment, Food and Rural Affairs (EFRA) Committee.1 He was calling on Department of Food and Rural Affairs Secretary George Eustice to urgently establish a strategy to tackle chronic worker shortages in food and farming in the name of EFRA’s inquiry into the issue.
This insight examines how some food and drink manufacturers’ solutions to their labour woes may be leaving them exposed to health and safety and compliance risks. It also looks at the legislative framework around these concerns and offers some practical insight on managing today’s potentially heightening risks.
Food and drink businesses are under intense pressure to maintain business as usual in the face of ever-shrinking and harder to secure human resources. Businesses don’t want to disappoint their customers, let alone the public who’ll likely make their outrage particularly clear if they don’t get ‘Christmas as usual’ this year with the products they love.
Given these pressures, it’s hardly surprising more food and drink employers are finding themselves turning to staff who lack any sector-specific expertise, or previous experience of the roles they take on. Whether these workers are directly recruited, or employed via third party agencies, many businesses are wrestling with this experience gap.
We know many accidents and incidents occur due to worker inexperience and/or a lack of appropriate training2. It’s for this reason the Health and Safety Executive (HSE) emphasises that every employee needs to know how to work safely and without risk to health and employers: ‘must provide clear instructions and information and adequate training’ to their workforce3.
According to the government’s Workplace Skills Survey 2019, the number of staff members undergoing workplace training fell to its lowest level in a decade.
Although providing adequate training is essential for any effective health and safety management system, evidence on workplace training standards dropping was emerging even before the
COVID-19 pandemic took hold. According to the government’s Workplace Skills Survey 20194, the number of staff members undergoing workplace training fell to its lowest level in a decade.
With many businesses facing significant additional financial challenges and restraints in light of the pandemic plus Brexit, the extra strain on training is indeed already showing, according the Chartered Institute of Personnel and Development (CIPD)5. Early indicators from its latest Labour Market Outlook data suggest training budgets have been impacted by COVID-19 and the subsequent downturn and this downwards pressure is likely to continue into the coming year and possibly beyond6.
For a sector where workplace accidents are already significantly higher than the national average7, throw the training of increasing numbers of new recruits and/or managing large numbers of agency/contractor-based employees into the mix, and it’s easy to see how health and safety-related risk profiles could quickly and significantly increase.
The primary health and safety duty imposed on UK employers is the requirement to ensure the safety of all employees and others ‘so far as is reasonably practicable’.8 It’s worth noting in this context that courts only consider whether the risk control measures are proportionate to the risk; they will not take into account any financial, trading or staffing challenges the employer may be facing.
In fact, anything that might be construed as cutting corners and costs at the expense of health and safety is considered an ‘aggravating factor’9 for the purposes of sentencing. This can lead to larger criminal fines and custodial sentences, with one UK business learning this the hard way earlier this year when it received a £6.5m fine due in part to what the presiding judge described as ‘…. a culture of cost cutting’.10
So, it’s clear that despite the current challenges, businesses need to remain vigilant to ensure operational compromises don’t impact their onboarding and ongoing training processes.
For both directly recruited staff, temporary agency workers and contractors, it’s essential your business establishes and sticks to robust selection, induction and training procedures. As Berenice Ray, HSE Inspector, points out: ‘Employers who use agency workers or contractors have a responsibility to firstly establish the workers’ competence, considering their level of experience and familiarity with the work and work equipment, and then provide the appropriate level of training to ensure the work is done safely11.’
Providing adequate training isn’t simply a concern for your HR function, but a matter of governance, with the HSE placing greater focus on the role the board plays in health and safety governance in recent years. HSE’s position is clearly summarised in the joint Institute of Directors and HSE Guidance note INDG417(rev):12 ‘Protecting the health and safety of employees or members of the public who may be affected by your activities is an essential part of risk management and must be led by the board.’
Health and safety law places duties on organisations and employers, but directors can also be personally liable if these duties are breached.
Health and safety law places duties on organisations and employers, but directors can also be personally liable if these duties are breached. This means members of the board have both collective and individual responsibility for health and safety. Arguably, the HSE has made its determination to tackle businesses and individuals that fall short of requirements even clearer recently by creating a new Director of Legal Services role with the remit, ‘to help increase the number of successful prosecutions’.13
Boards are well-advised, then, to ensure they put in place definitive strategies designed to identify and mitigate the health and safety risks created by the labour crisis. These plans then need to be communicated throughout the business and enforced by systematic checks to ensure operational compliance on a day-to-day basis.
The ongoing aftermath of Brexit and the COVID-19 pandemic continues to create the perfect storm of labour shortages for the food and drink sector, with Christmas demand now exacerbating the issues. As Food and Drink Federation chief executive Ian Wright told a recent Business, Energy and Industrial Strategy Committee: ‘I have a member who wants 40 people for the Christmas rush, not a single person to be had.’ But as we’ve already established, there is no special dispensation around failing to meet health and safety standards, even when labour issues are being widely reported, and felt14.
Establishing and maintaining robust training processes, led from the top of organisations, will help protect your people and strengthen your business’ defensibility from claims and potential reputational damage. It may also support your organisation in becoming an employer of choice in the fight for workers.
Our Claims Defensibility and Regulatory Practice offers a suite of services designed to help you understand and identify civil and regulatory risk. With a proven track record in providing effective risk mitigation solutions to the food and drink sector, our services include directors’ and senior leaders’ regulatory briefings, civil and regulatory defensibility reviews and civil and regulatory mock trial training.
1 https://www.fwi.co.uk/news/eu-referendum/ministers-fiddling-while-rome-burns-over-farm-labour-crisis
2 https://www.hse.gov.uk/vulnerable-workers/new-to-the-job.htm
3 https://www.hse.gov.uk/toolbox/managing/providing.htm
4 https://assets.publishing.service.gov.uk/government/uploads/system
/uploads/attachment_data/file/925744/Employer_Skills_Survey_2019_research_report.pdf
5 https://www.cipd.co.uk/knowledge/strategy/development/impact-covid-ld-profession#gref
6 https://www.peoplemanagement.co.uk/news/articles/more-than-one-million-employees-not-fully-proficient-roles-government-figures-show#gref
7 https://www.foodmanufacture.co.uk/Article/2020/11/06/Workplace-injuries-significantly-higher-in-food-and-drink
8 https://www.hsssearch.co.uk/Delivery-driver-suffers-brain-injury
9 https://www.sentencingcouncil.org.uk/wp-content/uploads/Health-and-Safety-Corporate-Manslaughter-Food-Safety-and-Hygiene-definitive-guideline-Web.pdf
10 https://www.northamptonchron.co.uk/news/crime/daventry-international-rail-freight-terminal-operator-fined-ps65m-over-death-of-harrison-ballantyne-11-in-2017-3329649
11 https://www.willistowerswatson.com/en-GB/Insights/2021/11/reputational-risks-in-the-leisure-and-hospitality-sector
12 https://www.hse.gov.uk/pubns/indg417.pdf
13 https://www.hse-network.com/
14 https://www.standard.co.uk/news/uk/ian-wright-amazon-graham-brexit-england-b954652.html
