In 2010, the coalition government set about reforming Britain’s health and safety legislation to address the concern that businesses were consumed by health and safety "red tape". As part of the reforms, the government commissioned Professor Löfstedt to undertake an independent review with a view to simplifying the regulatory framework to ease the burden on businesses and encourage growth. Professor Löfstedt concluded that, whilst the framework was broadly suitable, the legislation should be streamlined and HSE guidance simplified to make it easier for businesses to comply.
In March 2015, the departing coalition government issued its final progress report on the implementation of the accepted recommendations from Professor Löftsedt’s report. We examine some of the most important reforms below.
Important areas of reforms
- Self-employed – 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. The Deregulation Act 2015 has facilitated this change and it is anticipated that up to 1.8 million self-employed persons, except those on a prescribed list, will no longer be subject to the duties under the legislation. The prescribed list has not yet been introduced but it is anticipated that this will exclude business activities considered "low risk", such as office work. Whilst this might be a welcome change to ensure that health and safety law is not applied inappropriately, clear guidance will be required from the HSE on how the exemptions should be applied, to avoid dispute over what type of business and/or activity should be considered "low risk".
- Local Authorities (LA) – LAs have responsibility for inspecting certain categories of businesses, such as retail, warehousing and offices. In 2013, the HSE introduced a National Local Authority Enforcement Code to ensure a consistent, proportionate and targeted approach is taken to health and safety regulation based on risk. Statistics provided by the HSE indicate that from 2009/2010 to 2013/2014, the number of LA proactive inspections decreased by 95% to only 6,300 per year. Whilst there is no current explanation as to why the number of inspections has decreased at such a rate, this could be a consequence of LAs focusing on riskier businesses and activities.
- Working at height – the view of businesses and stakeholders was that there was a misinterpretation of The Work at Height Regulations, which was resulting in businesses going beyond what was proportionate and required by the Regulations. As such, in January 2014, the HSE produced revised guidance on working at height, which includes a 7 page “brief guide” to working at height and seeks to address myths about working at height, such as the complete prohibition of the use of ladders on construction sites.
Falls from height have often been one of the most common causes of work place fatalities and serious injuries. In 2013/2014 falls from height accounted for nearly 3 in 10 (29%) of fatal injuries to workers, the majority of which occurred in the construction and agriculture industries. There is a risk that reducing the guidance may actually lead to an increase in the number of accidents. However, it is hoped that the new guidance will help businesses understand what is required of them, to enable them to manage the risks of working at height proportionately and effectively.
- Prosecutions – Löfstedt’s recommendation is that prosecuting authorities should aim to commence prosecutions within 3 years of an incident. As prosecutions can currently take several years to be initiated, this is a step in the right direction. That said, preserving witness and documentary evidence becomes more challenging as time goes on and a delay of 3 years may still cause difficulties in some cases. Disappointingly, the HSE is yet to confirm whether the target is being met with the only indication being that there has been "some improvement".
Other important reforms include a revision of the Construction (Design and Management) Regulations 2007, changes to the RIDDOR reporting process, a revision of the HSE’s Approved Codes of Practice and the introduction of the underused Independent Regulatory Challenge Panel. Further information on these reforms and a full copy of the government’s final progress report can be found by clicking here.
Where do the reforms leave us?
Overall, the HSE has reduced the volume of health and safety legislation by 50% and the HSE’s Chief Executive recently commented that the Government’s progress report demonstrates a "major milestone" in the achievements HSE has made. Whilst there has evidently been an effort to consolidate and clarify the regulatory framework, it remains to be seen whether the changes actually make it easier for businesses to comply and in turn, whether we see a reduction in the number of workplace accidents.
It is important to note that the reforms have not taken place in isolation. Whilst de-regulation has been the objective, the introduction of Fees for Intervention (FFI) mean that, for those businesses operating in perceived "high risk" areas, there is now a real prospect of costs associated with targeted inspections being incurred for relatively minor infractions. This increases the red tape, sending mixed messages, exacerbated by the fact that FFI payments can potentially form "bad character" in any future prosecution.
Similarly the proposed new sentencing guidelines make compliance with health and safety even more important, with huge implications (if and when introduced) in respect of penalties for prosecutions, particularly for large businesses. Given that fines will include consideration of previous convictions and "bad character", this means regulatory compliance should be very high on everyone’s agenda and potentially that there will be more “red tape” as companies struggle to do more to achieve compliance.
Author: Lauren MurphyThis 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.