Now that the dust has settled on the UK’s referendum decision to leave the EU, questions are being asked about how Health, Safety and Employment law will change in a post-Brexit landscape. However until the UK triggers Article 50 and formally begins the exit process, Employers are left uncertain as to what real effects Brexit will have on their business.
Employment worries for workers
A recent survey of 1000 working adults by the Chartered Institute of Personnel and Development (CIPD) showed that many workers are taking a downbeat view, with 44% of working adults stating that they felt pessimistic about their post-Brexit future.
In other results from CIPD:
- 20% believed their job to be less secure, with 3% feeling more secure.
- 21% felt they needed to up-skill in order to add more value to employers.
- 13% said they had experienced, witnessed or heard of incidents of harassment or bullying of a political nature in the workplace.
- 7% said they had experienced, witnessed or heard of incidents of a racist nature.
- 36% of non-UK employees said they are worried about being able to continue to work in the UK.
Ben Willmott, CIPD’s Head of Public Policy, said: “This survey shows that Brexit has proven to be a seismic event in people’s working lives and reveals that there is significant level of pessimism in the immediate aftermath of the vote.”
He continued: “For most employers it will be important to communicate clearly with employees, stressing that there will be no immediate changes and that the organisation will keep the workforce closely informed about any potential changes as the negotiation over the UK’s future relationship with Europe and likely implications become clearer.”
“Line managers in particular have a key role in nipping conflict in the bud and making sure that what some may see as ‘banter’ does not cross the line and become offensive or harassment.”
Brexit brain drain?
The President of the International Institute of Risk and Safety Management (IIRSM), Siobhan Donnelly, has given a warning that the UK risks a ‘brain drain’, IIRSM having had received numerous queries from members who are evaluating their job and career prospects post-Brexit. Where Health and Safety professionals leave to pursue work in the EU or venture further afield this could result in the departure of a lot of high level knowledge from the industry.
She said, “There are people who will be looking to relocate, perhaps to Scotland or Ireland or further afield. We can’t afford to lose good people, and it’s the people who know they will get jobs who make these decisions first.”
Ms Donnelly also stated that employee worry about the perceived lack of job security and economic uncertainty caused by Brexit needs to be tackled by employers: “Managers and senior leaders are often not in a position to say the business will not be impacted. But I think that where they can reassure and formulate plans that give certainty around jobs, they should communicate that.”
Overall the President felt that the UK will remain a world leader in Health and Safety: “Overseas, people look to the UK [for leadership on health and safety]. The 2012 Olympics sent a clear message to the world about our health and safety standards. When I speak to people in Qatar, or Abu Dhabi or Dubai, they all look to the UK.”
Once the UK has left the EU, judges will not have to interpret UK law in accordance with decisions made by the Court of Justice of the European Union (CJEU). This means that we should enjoy more flexibility when it comes to applying the law, although we will remain signatories to the European Convention on Human Rights, which should prevent a rolling back of worker rights. Furthermore the removal of the CJEU as the UK’s highest legal authority could see UK courts and enforcing bodies such as the HSE receive a ‘boost’ of authority.
Depending on any trade agreement reached with the EU, there may be a need to comply with much of EU regulation, similar to the way in which Norway is treated. Of course once the UK is outside of the EU we will have no say in EU directives, although we may still be bound by them due to trade agreements, leading to a scenario where we have a responsibility to comply but no say in the law itself.
A historic bone of contention with how the UK applies H&S law is the use of the phrase ‘so far as is reasonably practicable’ (SFAIRP). Following a 10-year dispute between the UK Government and the EU Commission, in 2007 the European Court of Justice ruled that the UK’s use of the phrase in its domestic H&S legislation was acceptable and dismissed the case.
When used in H&S law, SFAIRP allows employers to weigh the quantum of sacrifice (time, effort, resources, cost etc.) against the risk to employees and others who may be harmed by the organisation’s activities when deciding on which H&S controls to implement. If the sacrifice heavily outweighs the level of risk and benefits from implementing a control then the employer may argue, should the case be brought to court, that they did everything reasonable to protect people short of committing an unreasonable amount of money, resources and time.
This helps to make UK H&S legislation goal-setting rather than prescriptive and gives employers the flexibility to comply in a way that doesn’t necessarily hinder business or result in great expense.
Big changes ahead for H&S?
Realistically short-term changes to H&S law will focus on making the UK more business-focused and competitive by removing what might be seen as ‘regulatory burdens’. Laws that make employers feel disadvantaged compared to other countries or the cost of compliance is believed to be too great may be in the spotlight, including:
- The Working Time Regulations 1998, which are estimated by the Open Europe think tank to cost the economy £4.4bn each year
- Directive 2006/25/EC – artificial optical radiation, the requirements of which the UK has struggled to implement
- The Construction, Design and Management Regulations 2015 which were amended to include temporary structures and private households within the scope of ‘construction work’ in order to comply with EU Directives
- The requirement for Employers to meet the cost of eye and eyesight tests for Display Screen Equipment work
- The Agency Workers Regulations 2010.
What should I be doing now?
Until Article 50 is invoked, the pace of change will remain unknown but it will take at least two years to make official the terms of the UK’s exit and its relationship (if any) with EU legislation. Businesses employing migrant workers should ensure they have the right to work in the UK and have the required checks and visas in place.
Employers should also make sure their policies and procedures are up-to-date and that documentation such as risk assessments, employment contracts and management systems are robust to current standards in order to future-proof business activities.