Draft Deregulation Bill
Briefing for affiliates - July 2013.
The Government has published a Draft Deregulation Bill. This will, among other things, take those self-employed who pose no risk to others from the scope of the Health and Safety at Work Act.
It does this by restricting coverage of the Act to self-employed people who 'conduct a relevant undertaking'. A relevant undertaking will be one where it is a 'prescribed description', or it affects, by the way it is conducted, other people by exposing them to risks to their health and safety. This does not cover the self employed person themselves. It is not known what the 'prescribed descriptions' will be at the moment as this will be decided by the Secretary of State who will publish regulations on relevant undertakings.
The proposal came about from the Lofstedt Review of Health and safety regulation published in November 2011, where he proposed 'exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others'. This recommendation was opposed by the TUC nominee on the Lofstedt review as well as by the MP representing Labour. In autumn 2012 the HSE conducted a consultation on the recommendation, putting forward various options, but not asking for a view on the principle. The preferred option, which is the one proposed in the Draft Bill, had a majority of respondents opposed to it.
The TUC has campaigned against this proposal because it would create confusion and uncertainty in a sector which already has a much higher fatality, injury and ill-health rate. It is also opposed by the health and safety professionals body, IOSH, who say 'This is a very short-sighted and misleading move, it won't actually help anyone; it won't support business; but it will cause general confusion.'
At present, if you are self-employed, you have a legal duty to ensure that you protect others from harm resulting from your work activity. This covers all self-employed people. It is pretty straightforward and it works. There is no confusion and it means that everyone is very clear that no-one can take risks with others safety or health, even if they are self-employed.
The changes proposed in the Draft Bill are completely unnecessary as the only time the Health and Safety at Work Act can be used is in circumstances whereby the person does put another person at risk. If they injure another person through their work, regardless of what they may have believed beforehand, the Health and Safety at Work Act will apply.
Nor is there any need to change the duty of a self employed person not to injure themselves. No self-employed person has ever been prosecuted or threatened with prosecution only for risking their own health, however the Health and Safety at Work Act means that the HSE has been able to give them guidance on how to protect their own safety. Cases where self-employed people have been prosecuted have been where they also risked the safety of others such as window-cleaners and scaffolders.
Despite this Draft Bill, every self-employed person is still going to have to do a risk assessment to see if their work poses a risk to others and if there is no risk there is no problem, just the same as now. That will not change.
What will change is the confusion and complacency that it will bring. Self-employed people will be unsure if they are covered, or presume that they are not especially if they are not on the proscribed 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.
Worse still people who control the workplace where self-employed people work (often bogus-self-employed) will wrongly think that they do not have any duty of care to them. Self-employed people who employ others may interpret it as meaning that they are exempt from the law.
Given that the most dangerous industries all have a high proportion of self-employed people in them (agriculture, construction etc.) anything that confuses the situation is a recipe for disaster.
The Bill states that the proposals are being done 'for the reduction of burdens resulting from legislation for businesses or other organisations or for individuals'. In fact it does the opposite as it does not actually change the situation for those who genuinely do not pose a risk to others and only creates complete confusion for all the other self-employed.
There is currently a fatality rate of 1.2 per 100,000 for the self-employed as against 0.5 per 100,000 for employees.
Wording of Clause 1
1 Health and safety at work: general duty of self-employed persons
(1) Section 3 of the Health and Safety at Work etc. Act 1974 (general duty of employers and self-employed to persons other than their employees) is amended in accordance with subsections (2) and (3).
(2) In subsection (2) (which imposes a general duty with respect to health and safety on self-employed persons).
(a) after 'self-employed person' insert 'who conducts a relevant undertaking';
(b) for 'his undertaking' substitute 'the undertaking'
(3) After subsection (2) insert.
'(2A) For the purposes of subsection (2), an undertaking is a relevant undertaking if.
(a) it is of a prescribed description, or
(b) persons who may be affected by the way in which it is conducted, other than the person conducting it (or his employees), could thereby be exposed to risks to their health and safety.'
(4) In section 11 of that Act (functions of the Executive), in subsection (4)(b), after
'does not' insert ', except in relation to regulations under section 3(2A)(a),'.
(5) Where this section comes into force at a time when there is in force an Order in Council made under section 84(3) of the Health and Safety at Work etc. Act 1974 that applies section 3 or 11 of that Act to matters outside Great Britain, that Order is to be taken as applying that section as amended by this section.
Notes from the Draft Bill.Clause 1:
Health and safety at work: general duty of self-employed persons
11. Subsection (1) provides that this clause makes amendments to section 3 of the Health and Safety at Work etc. Act 1974 (general duty of employers and self employed to persons other than their employees).
12. Subsection (2) amends section 3(2) of the Health and Safety at Work etc. Act 1974 (which imposes a general duty with respect to health and safety on all selfemployed persons). The purpose of this amendment is to limit the scope of the general duty under section 3(2) so that only self-employed persons who conduct a 'relevant undertaking' (defined in subsection (3)) have an obligation to conduct their undertaking in such a way as to ensure that, so far as is reasonably practicable, they themselves and other persons who may be affected thereby are not exposed to risks to their health and safety. This is a deregulatory provision because it will exempt from health and safety law those self-employed persons who have no employees, and whose workplace activities pose no potential risk of harm to others.
13. Subsection (3) inserts a new subsection (2A) into section 3 of the Health and Safety at Work etc. Act 1974. This defines 'relevant undertaking' as:
? in subsection (2A)(a), an undertaking of a prescribed description. Such undertakings will be prescribed by way of regulations made by the Secretary of State under this provision to ensure the section 3(2) duty continues to apply to all self-employed persons who conduct their undertaking in a high risk sector or activity; or
? in subsection (2A)(b), an undertaking (other than one falling within paragraph (a)) of such a kind that persons who may be affected by it (other than the person conducting it or his employees) could be exposed to risks to their health and safety.
14. Section 11(4)(b) of the Health and Safety at Work etc. Act 1974 prevents the Health and Safety Executive from submitting proposals to the Secretary of State for the making of regulations for railway safety purposes. Subsection (4) of this clause removes the regulation-making power in new subsection (2A)(a) from the scope of section 11(4)(b). This will enable the Health and Safety Executive to recommend proposals to the Secretary of State for the making of regulations that prescribe undertakings for railway safety purposes.
15. Section 84(3) of the Health and Safety at Work etc. Act 1974 includes a power for Her Majesty by Order in Council to apply provisions of the Act outside Great Britain. In the event that such an Order in Council is in force when the clause comes into force, subsection (5) of this clause provides for the amendments made to sections 3 and 11 of the Health and Safety at Work etc. Act 1974 to apply outside Great Britain for such purposes as may be specified in the Order.
16. This clause forms part of the law of England and Wales and Scotland and will come into force on a day to be appointed by the Secretary of State in a commencement order.
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