H&S law exemption proposed for the self-employed

 

Health and Safety

From 7th July to 31st August 2014 the Health and Safety Executive (HSE) sought views on their proposal to exempt certain self-employed persons from Section 3(2) of the Health & Safety at Work etc. Act 1974.

The proposal arose from the Government-commissioned Löfstedt Report “Reclaiming health and safety for all” in 2011, which recommended that self-employed persons be exempt from health and safety law where they pose no potential risk of harm to others through their work activity. The proposal could affect up to 1 million persons.

The current position

The Great Britain (GB) regulatory framework for health and safety, in particular section 3(2) of HSWA, places general duties on everyone “at work” including the self-employed. Section 3(2) states:

“It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety.”

Section 53 of HSWA gives a broad definition of a self-employed person. It states that a “self-employed person means an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others.” There is no proposal to amend this definition.

The proposed change

Section 3(2) of HSWA may be amended in order to exempt self-employed persons from the general duty in respect of themselves and other persons (not being their employees), except those undertaking activities on a prescribed list. The list includes agricultural activity, gamekeeping, landscaping, construction work, mining and quarrying, railways, health and social care, waste management, nuclear industry and work with asbestos, electricity, gases and pressure systems.

Reaction and concerns

The reaction among business organisations such as the Federation of Small Businesses, the British Chamber of Commerce and the Institute of Directors has been positive, with a general feeling that it will enable small, self-run businesses to thrive without the additional burden of Health and Safety legislation.

Safety bodies such as the Institution of Occupational Safety and Health, the Trades Union Congress and Royal Society for the Prevention of Accidents greeted the proposal with significantly less enthusiasm, believing that it could lead to a reduction in standards and a possible increase in injuries and work related ill-health and that the exemption will be difficult to apply correctly.

There are also other concerns as to how certain organisations such as insurance companies and contractor approval schemes will respond to the change. Furthermore many companies may simply choose not to engage self-employed persons to carry out work on either their behalf or on their premises due to the belief that these persons could not be prosecuted and therefore they could find themselves becoming liable.

What next?

The HSE will assess the costs and benefits of the proposed changes as set out in the Impact Assessment in the consultation document, and will then decide on how best to take the proposals forward, based on an analysis of the consultation responses.

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