1. The structure of health and safety law


Key changes and developments since last year


• The Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015 came into force in October 2015; exempting around 1.7 million self-employed people from health and safety law;


• The European Union (EU) Referendum vote to leave in June 2016 could have serious consequences for UK health and safety law. 


The Health and Safety at Work etc Act 1974 (HSWA) is the core piece of legislation that reps need to be familiar with in order to be able to carry out their functions effectively. The HSWA aims to ensure that virtually all workers in all occupations are protected by health and safety legislation. However, the reach of the legislation was severely undermined by changes to the safety protection of self-employed people, following a recommendation in the 2011 Löfstedt review of health and safety legislation, Reclaiming health and safety for all (see page 22). The Deregulation Act 2015 allowed the government to exempt some 1.7 million self-employed people from the requirements of the HSWA. On 1 October 2015, the change was brought into effect using new Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015. Under these regulations, health and safety law only applies to “relevant” self-employed people. These are either self-employed people whose work activity is specifically mentioned in the new regulations, or anyone whose work activity poses a risk to the health and safety of others.


The activities that are specifically mentioned in the new regulations are agriculture (including forestry), work with asbestos, work on a construction site, an activity to which the Gas Safety (Installation and Use) Regulations 1998 applies, work with genetically modified organisms and work on the railways.


HSE guidance on the new regulations, available from the HSE website, explains that for health and safety law purposes, “self-employed” means that a person does not work under a contract of employment and works only for themselves. If a person is self-employed and employs others, then health and law does apply to them. It also explains that a risk to the health and safety of others is the likelihood of someone else being harmed or injured (for example, members of the public, clients, contractors and so on) as a consequence of their work activity. Only the genuinely self-employed should be affected by the change. There is guidance on what does – and does not – amount to genuine self-employment in the LRD’s companion annual publication, Law at Work.


Unions and the TUC campaigned vigorously against the change, pointing out that the self-employed are more than twice as likely to be killed as employees.


The HSWA provides a broad framework for the regulation of health and safety through one comprehensive, integrated system of law. It is written in very general terms and the duties on employers are qualified with the words, “so far as is reasonably practicable”. This means that employers can argue that the cost of safety measures is not justified by the reduction in risk, but it does not mean that they can avoid their responsibilities simply by claiming that they cannot afford improvements.


Most health and safety law is enforced either by the Health and Safety Executive (HSE), the regulatory body set up under the HSWA, or local authorities, although there are other enforcement agencies responsible for enforcing fire safety as well as health and safety in the aviation, maritime, railway and nuclear industries and on the roads, for example (See Enforcement: Chapter 2).


These are the most important sections of the HSWA:


Section 2 places a general duty on employers to ensure the safety, health and welfare at work of their employees. Employers have a duty to protect the mental as well as physical health of employees. In particular, employers must:


• provide and maintain plant and systems at work so that they are safe and without risks to health;


• make arrangements for ensuring the safe use, handling, storage and transport of articles and substances;


• provide health and safety information, instruction, training and supervision;


• maintain the place of work (where it is in the employer’s control) so that it, and access to and exit from it, is safe and without risks to health; and


• provide and maintain a safe working environment and adequate welfare facilities.


Any employer who employs five or more people is required to prepare and keep up-to-date a written statement of health and safety policy and to bring the statement to the attention of employees. This should set out the organisation (people) and arrangements (procedures) necessary to ensure a safe and healthy place of work.


Section 2 also states that employers must consult safety representatives of recognised trade unions about the making and maintenance of health and safety arrangements and, where requested by two or more safety reps, set up a safety committee (see Chapter 4).


Section 3 places a general duty on employers and relevant self-employed people (see page 12 above) to ensure that their activities do not endanger anybody and, in certain circumstances, to provide information to the public about any potential hazards to health and safety (for example, on construction sites).


Section 4 places a duty on one responsible for places of work to ensure that the premises themselves, as well as any plant and machinery in them, do not endanger people using them.


Section 6 places duties on employers to ensure the safe installation of plant and to ensure that articles or substances supplied for work are safe when used correctly.


Section 7 places duties on employees to take reasonable care to ensure they do not endanger themselves or anyone else who may be affected by their work activities.


Section 8 places a duty on everyone not to intentionally or recklessly interfere with, or misuse anything provided for health and safety purposes.


Section 9 states that an employer must not charge an employee for anything done, or for equipment provided, for health or safety purposes (see Chapter 7).


Other important sections of the Act include the following:


• Section 20 sets out the powers of inspectors;


• Section 28 requires HSE inspectors to supply certain information on health and safety, including enforcement, to employees or their representatives (see Chapter 2: Enforcement);


• Section 33 sets out the offences and penalties under the HSWA. The maximum penalties for offences under section 33 were increased in 2009 and again in 2015. Fines are now unlimited, and prison sentences of up to six months (if the case is heard in the magistrates' courts) or two years (if the case is heard in the Crown Court) can be handed down for most health and safety offences;


• Section 37 sets out the circumstances in which a company director, manager, secretary or other similar officer can be prosecuted; and


• Section 40 requires employers accused of breaches of health and safety law to prove that it was not “reasonably practicable” (see page 13 above) to do more than was done to satisfy the duty of care.


• Section 47 deals with civil liability.


From 1 October 2013, a fundamental change was made to this part of the Act, reversing laws that had been in place for more than a hundred years, since 1898. As a result of the change, a worker who is injured due to an employer’s breach of a statutory duty under health and safety at work regulations can only succeed in a claim for work-related injury if they can prove that the injury resulted from their employer’s negligence. This change to the law was brought into effect by Section 69 of the Enterprise and Regulatory Reform Act 2013,


In the past, workers were allowed to bring civil claims for compensation against employers who breached health and safety regulations, regardless of whether the employer was at fault. The employer was ‘strictly liable’ (i.e. automatically responsible) for loss that resulted from the worker’s injury. The established basis for strict liability in an employment setting was that employers are equipped with the knowledge, power and responsibility needed to build and maintain a safe working environment, and they also gain from the profits made by the enterprise. Consequently, when workers are injured due to breaches of health and safety regulation at work, they should be compensated regardless of whether the injury was the employer’s fault.


The change was made without consultation or review and arose out of a recommendation by Professor Löfstedt in his review of health and safety law (see page 22). Löfstedt felt that strict liability created “potential unfairness” for employers. As general union Unite says, by making this change, the government “effectively removed the right of injured people to rely upon breaches of health and safety regulations when bringing a legal claim.” Löftstedt himself expressed concern that the amendment went much further than he had recommended.


It is important to note that this change to the law only applies to accidents and industrial disease that occurred on or after 1 October 2013. For ill or injured workers whose injury or disease occurred before the October cut-off date, the previous law will still apply.