12. Exempting the self-employed from health and safety law

The government has decided to scrap health and safety rules for 4.3 million self-employed people from health and safety regulation.

In April 2014, a TUC report, Toxic, Corrosive and Hazardous — the government’s record on health and safety, explained how the government was trying to change the law to exempt large numbers of self-employed workers by excluding everyone not on a specific narrow list. The changes will remove all liability under the Health and Safety at Work etc Act 1974 (HSWA) for any self-employed person who is not on the list. The HSE will not be able to prosecute them or even stop them doing things that are risking injury to other people.

The TUC report says that these proposals will also be a recipe for confusion and complacency. Self-employed people will be unsure if they are covered, or presume that they are not, especially if they are not on the prescribed list of occupations or sectors (presuming they know about it). Even many people that clearly do pose a danger will think that they now have nothing to worry about so will believe that there is no need for any safety precautions.

TUC general secretary Frances O’Grady has described the move as “one of the most dangerous” since the (Health and Safety at Work Act) came into effect 40 years ago.

The report can be found at: www.tuc.org.uk/sites/default/files/Government%20record%202014.pdf.

The background to the government’s plans is the 2011 Löfstedt report, Reclaiming health and safety for all. In the report, Löfstedt recommended “exempting from health and safety law, those self-employed whose work activities pose no potential risk of harm to others.”

The government is using this recommendation to exempt all self-employed people from health and safety legislation apart from those on a “prescribed list” of occupations.

Under Löfstedt’s original proposal, most self-employed people would have retained their health and safety duties, but if the list of exemptions suggested by the HSE is accepted, many self-employed people, including those working in potentially hazardous occupations will be exempt.

The HSE’s own list of professions that will no longer have safety duties includes metalworkers and maintenance fitters, motor mechanics, HGV drivers, furniture makers and cooks.

The list prompted Löfstedt to write to the parliamentary committee examining the plans to warn them the proposals went far beyond his intentions. In his letter, Löfstedt said: “I have suggested that clerical-type work, e.g. a software developer or writer, would be considered as posing low risk to others.”

TUC senior health and safety policy officer, Hugh Robertson, said the proposed list of exemptions was so far away from Löfstedt’s original proposal it would make self-employed people spend more, not less, on consultants to clarify their status. The list was described as “a complete mess” by TUC general secretary Frances O’Grady.

In July 2014, the HSE launched an online consultation on particular groups of self-employed persons who will continue to have existing legal health and safety obligations, and who will be included on the proposed prescribed list.

The HSE consultation which was ongoing at the time that this booklet went to press, was looking for views on those covered by the proposed prescribed activities to make sure that they clearly and easily understood the legal responsibilities that still applied to them.

The proposed prescribed activities include those:

• that have high rates of injuries and/or fatalities, such as agriculture;

• where there is a significant risk to members of the public, for example fairground attractions;

• where there is the potential for mass fatalities, such as explosives; and

• where there is a European Union obligation to retain the general duty on self-employed persons, for example at temporary or mobile construction sites.

In its submission to the HSE’s consultation on the policy, general union Unite provided statistics which revealed that being self-employed can actually make work more dangerous saying:

“Self-employed people are more than twice as likely to be killed than employees. There is a fatality rate of 1.2 per 100,000 for the self-employed as against 0.5 per 100,000 for employees. Self-employment is more common in many of the most hazardous industries, including construction and agriculture. Much of that self-employment is bogus.”

The union added: “This is extremely hazardous for both workers and society in general. We predict that if this proposal is adopted there will be an increase in injuries, deaths and occupational illness.”

The government published the Deregulation Bill in July 2013, covering a wide range of regulation including a proposal to exempt all the self-employed from health and safety regulation, except for those on a prescribed list. The Bill is also part of the government’s deregulation agenda which it describes as a “reduction of burdens resulting from the legislation for businesses or other organisations”.

The Institute of Occupational Safety and Health (IOSH) body for health and safety professionals has warned the government against these proposals.

While IOSH says it supports “the simplification of legislation and guidance”, it is “against lowering of standards that could lead to more accidents and deaths”. Head of policy and public affairs, Richard Jones, said the exemption of certain self-employed people from health and safety law would be “more of a hindrance than a help”.

And, he added: “It’s important to remember that the health and safety failures in the UK cost a staggering £13.4 billion a year, double this once you take into account the cost of occupational cancers and property damage. Good health and safety saves lives, supports business and sustains the economy.”

Under the current government plans, all self-employed people will be exempt from the general legal duty to conduct their business in a way that does not risk the health and safety of those who are not employed by them, as far as reasonably practical, except for those that are undertaking activities on a prescribed list.

The TUC’s Hugh Robertson, said: “The whole thing is a mess from beginning to end. At present the law is clear. Anyone who is involved in work activity whether an employer or self-employed is covered by the Health and Safety at Work Act. Simple. If this group of zealots get their way we will have mass confusion with most self-employed people not having a clue as to their responsibilities, and the only winners will be the consultants that they have to employ to advise them of their legal position. Although, unless we stop this Bill becoming law it will also mean more business for doctors — and undertakers.”