As the HSE consults on proposals to exempt those self-employed who do not undertake certain high risk activities from health and safety regulations, we consider in detail the recommendations and likely consequences.
Under current legislation, self-employed persons have a duty to conduct their undertaking in such a way as to ensure that neither they nor any other persons are exposed to risk. These duties are set out within Section 3(2) of the Health and Safety at Work etc. Act 1974 (HSWA). Section 53 of HSWA defines a self-employed person as an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others.
Professor Löfstedt’s Report
Within his 2011 report, Professor Löfstedt recommended that self-employed persons be exempt from health and safety regulation where they pose no potential risk of harm to others through their work activities. Professor Löfstedt stated that by adopting this approach, the Government would be following a similar approach to other countries and anticipated that the exemption would benefit approximately one million self-employed. More generally, he stated that it would help reduce the perception that health and safety regulation is inappropriately applied.
Policy objectives and intended effects
The HSE has two objectives in submitting their proposals; firstly to remove the burden placed on the self-employed population and, secondly, to bring the UK in line with other EU countries who have taken a more proportionate approach when applying health and safety laws to the self-employed, such as Germany and the Netherlands.
The impact assessment prepared in consideration of these proposals estimated a net saving of £6.7m over 10 years (taking into consideration the cost of implementation). These figures also take into account time currently spent by new and existing self-employed persons in complying with current legislation, and the time required for these businesses to assess whether or not the proposed exemptions apply.
The HSE’s recommendations have already been considered by the Pre-legislative Joint Scrutiny Committee (JSC), which concluded that confusion could arise as a result of the way the HSE's original wording of the exemption was drafted. In particular, it was felt that the clause was unclear for those self-employed persons who retained duties, and this might result in uncertainties and inconsistencies in terms of when the exemption would by applied.
As a result the HSE now proposes to amend the HSWA so that self-employed persons, except those undertaking activities set out on a prescribed list, will be exempt from the duties imposed upon them by s3(2) HSWA. An undertaking will be included within that list if one of the following four criteria is met:
- There are high numbers of self employed in a particular industry and high rates of injuries and/or fatalities
- There is significant risk to members of the public
- There is the potential for mass fatalities
- There is a European obligation to retain the general duty on self-employed persons
Views of stakeholders
Broadly, business organisations including the Federation of Small Businesses, the British Chamber of Commerce and the Institute of Directors have welcomed the proposal, if they mean small owner-managed businesses can grow and succeed without having to manage the full range of health and safety rules and regulations.
Unsurprisingly, the reaction of safety bodies such as the Institution of Occupational Safety and Health, the Trades Union Congress and Royal Society for the Prevention of Accidents have been more muted and less positive. They fear the changes could lead to a fall in standards and an increase in injuries and work related ill-health, and have also expressed concerns it will be difficult for enforcing authorities to apply consistently.
It will also be interesting to see how insurers and industry specific approval schemes will react to any change. Larger organisations may be reluctant to use self-employed persons to undertake work on their premises due to possible assumption of risk on their part, and concern that they alone would be subject to enforcement action if a serious accident occurred involving a self-employment contractor. Insurers may react to the reduced regulation of self-employed business activities by increasing liability premiums, which are already a significant cost to small business.
The consultation period will be live from 7 July 2014 until 31 August 2014.
Following the end of the consultation period, HSE will publish a summary of results and make a decision as to how best to proceed with the proposals based on analysis of the consultation report.
Authors: Siân Musker & Tristan Meears-WhiteThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.