OSH exemptions for certain self-employed UK individuals move closer

HSE logoThe delayed  plans to exempt self-employed individuals in the UK whose work "does not expose others to risks" from general health and safety obligations have come a step closer to completion after draft regulations were published by the HSE.

The draft stems from Professor Ragnar Löfstedt’s review published in 2011. Löfstedt said that UK law went "beyond UK requirements" by including self-employed people within the regime governed by the 1974 Health and Safety at Work Act (HSWA), as most countries only applied legislation to those engaged in activities that were particularly hazardous or carried a risk of injury to others.

“...The amendment, contained in the Deregulation Act 2015 and which forms the basis of these regulations, was welcomed, although there remain concerns that change was unnecessary in the first place...”

Kevin Bridges, Pinsent Masons law firm

If passed in their current form, the regulations would remove all self-employed people that do not employ others from the scope of the HSWA, unless their work falls within certain categories prescribed in the regulations.

The change to the law would save self-employed people in the UK around £4.7 million over the next 10 years, according to an explanatory note published by the HSE.

"The government’s original plan was opposed by many concerned it would lead to lower standards, confusion and increased risk," health and safety expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com, said. "The amendment, contained in the Deregulation Act 2015 and which forms the basis of these regulations, was welcomed, although there remain concerns that change was unnecessary in the first place.

It was generally accepted that the burden on the self-employed whose activities are genuinely of no risk to others was light. Extremes are of course easy to predict, the difficulties lie in the middle 'grey' area.

The potential for confusion, additional costs and more bureaucracy, when a reduction is the aim, arguably remains." Currently, all self-employed individuals in the UK are under a legal duty to protect themselves and others from risks to their health and safety "so far as is reasonably practicable", regardless of the type of activity undertaken or the risks created.

In his report, Löfstedt recommended that those self-employed people whose work activities posed no potential risks to others should be exempted from health and safety law. The UK government originally proposed to do this by way of a general exemption from health and safety law for self-employed people whose work activities posed "no potential risk of harm to others", with the addition of a 'prescribed list' of high hazard and high risk activities where this exemption would not operate.

However, MPs raised concerns that this approach was too broad and left the potential for self-employed people to incorrectly assess whether the exemption applied to them. Final provisions were introduced by the 2015 Deregulation Act, which received Royal Assent on 26 March.

The final wording allowed for a 'catch-all' provision, to be set out in the regulations, which would ensure that those selfemployed individuals who "otherwise carry out an activity that may pose a risk to the health and safety of another person", as well as those who carry out a prescribed activity, continue to be caught by the law. HSE's website will be updated shortly to reflect the changes.

This will include a new self-employed section of the site, to be easily accessible from the home page, and new guidance which will provide the self-employed with information on factors to take into account when establishing whether their work activities continue to be caught by HSWA. This guidance will be made available 12 weeks before the changes come into force, according to the explanatory note.

Post date: 14 Jul 2015

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