18 September 2019 - Article
The consultation, which closed on 31 August 2014, sought views in connection with a government proposal to exempt self-employed persons from section 3(2) of the Health and Safety at Work etc Act 1974 (HSWA), except for those undertaking activities on a prescribed list. The move seeks to implement a recommendation by Professor Löfstedt in his 2011 report ‘Reclaiming health and safety for all: an independent review of health and safety legislation’, that those self-employed who pose no potential risk of harm to others through their work activity should be exempt from health and safety law. The purpose of the prescribed list would be to set out clearly those self-employed activities, posing a significant risk of harm to the self-employed person or others, where a duty under the HSWA is retained.
Currently, section 3(2) HSWA imposes a duty on every self-employed person to ensure, so far as is reasonably practicable, that he and other persons (other than his employees) who may be affected by his work-related activities are not exposed thereby to risks to their health and safety. Under the proposed change, section 3(2) HSWA will be amended to exempt self-employed persons from the general duty in respect of themselves and other persons (other than their employees), except those undertaking activities on a prescribed list. The Secretary of State will be able to make regulations to add self-employed activities to the prescribed list if one of four criteria is met:
- There are high numbers of self-employed in a particular industry and high rates of injuries and/or fatalities;
- There is a significant risk to members of the public;
- There is the potential for mass fatalities; or
- There is a European obligation to retain the general duty on self-employed persons.
Proposed prescribed activities include those related to: agriculture and forestry; construction and design; compressed air; diving; chemicals, explosives and other dangerous substances; asbestos; electricity; equipment and plant; pressure systems; mining and quarrying; pipelines; railways and other guided transport; health and social care; waste management; amusement; gas; genetically modified organisms; nuclear and ionizing radiation; offshore and the provision of advice relating to any of the above.
The draft proposals aim to spare most self-employed people the financial and regulatory burden of complying with the HSWA, but are likely to fail to achieve this aim through being insufficiently clear. Some of the proposed definitions of prescribed activities are either too broadly drafted to enable a self-employed person to determine whether the law applies to them, or refer to definitions provided in other legislation. Instead of the current situation, where employers and self-employed alike are covered by the HSWA, the proposed change risks causing confusion among the self-employed over whether or not their activities are subject to the HSWA.
The problem with section 3(2) as it stands lies not in the general duty which it places on the self-employed, but rather on the interpretation of that duty by safety consultants and HSE inspectors. Government reforms should focus on achieving consistent application of the existing law rather than creating further uncertainty by changing the law.
What this means for you ?
If you are self employed then make sure you familiarise yourself with the debate and with the regulations as and when they become law.
If you engage with self employed individuals you will need to have a clear understanding of their safety obligations .