By David Branson
Under section 1 of the Deregulation Act 2015, the Government has amended section 3(2) of the Health and Safety at Work Act 1974 (HSWA) which imposed a general duty on the self-employed to protect themselves and others from risk to their health and safety. Under the revised HSWA, this duty now lies on the self-employed only where their undertaking is one of a ‘prescribed description’ such as agriculture, construction, quarrying, mining, offshore work or high-risk chemical sites; or where they carry out an activity which may pose a risk to the health and safety of other persons.
In other situations, the self-employed person will have no duty to ensure their health and safety including any obligation to carry out a risk assessment under the Management of Health and Safety at Work Regulations 2006.
This change has been portrayed as a sensible way of relieving the self-employed from an unnecessary legislative and administrative burden. Requiring self-employed workers to look after their own health and safety is being seen as a classic example of the ‘nanny state’. Indeed, in the past HSE rarely enforced the HSWA in respect of the self-employed looking after their own safety.
In addition, several EU countries do not apply health and safety legislation to the self-employed unless there is a danger to third parties, as in Germany. However, there are still a number of reasons why we should be wary of the recent changes as they may have a detrimental impact on health and safety in the UK.
In respect of the self-employed person themselves, relieving them of the legal burden to ensure their own safety at work may lead to self-employed workers taking unnecessary risks at work. This is the more so, where commercial pressures tend towards workers taking risks to win and retain contracts. The danger here is that poor health and safety practices may become contagious, affecting the behaviour of other workers working on the same site, who may feel that they need to work in the same way to protect their jobs.
In many cases, self-employed workers will work alongside other contractors still covered by HSWA. As such, it will be very difficult to maintain a positive safety culture in such a workplace, if different workers operate to different standards.
A second factor is that the activities of the self-employed may affect the health and safety of other workers. Deregulation will not apply where the self-employed person carries out an activity which poses a risk to other persons. However, it is up to the self-employed person to assess whether there is such a risk and there is always the possibility that the risk will be miscalculated or even downplayed.
Although the deregulation does not apply to a set of ‘prescribed activities’ as set out above; they do not cover operations such as warehouse and distribution work or decorating, both of which involve work at height or with powered transport. The commercial advantages of excluding legal liability may mean that the self-employed person will have to make a judgement as to what is a sufficient risk, in a situation where financial pressures may outweigh safety concerns. However, in this situation it is the third party who may be affected, not just the self-employed person. Where the self-employed person always has to follow the relevant safety precautions, this is more likely to prevent injury to third parties.
A final consideration here is the extent to which it is possible to clearly define who is actually self-employed. The recent growth of self-employment includes a large number of workers who are really employees but are required to adopt self-employed status, either to limit their tax liability or to enable the employer to avoid the restrictions of employment law.
In general, the courts have been unwilling to allow bogus self-employment to be used to avoid civil legal obligation under health and safety laws, as can be seen in cases such as Lane v Shire Roofing Co (Oxford) Ltd (1995) [1]. In this case, the person engaging the injured party was seen as engaging him in a contract of employment not self-employment and so was liable to him under the civil duty of care.
However, the situation may be a little more complicated in criminal law, even though the duty of care is essentially the same. The worker may voluntarily adopt a self-employed status and the person engaging him may argue that any criminal liability should lie with the self-employed worker and not with the person engaging him. The danger here is that it may be very difficult to distinguish between genuine self-employment and bogus self-employment.
It is true that under section 3(1) of HSWA, there is a duty on an employer to conduct his undertaking in a way as to ensure the safety of non-employees, which includes self-employed persons. However, there is no liability if the employer can argue that he had no real control over the activities of the self-employed person, as in Haseldine v Daw & Sons (1941) [2]. The liability will therefore depend on the extent of the control exercised over the self-employed person and this could be very difficult to determine.
In determining the nature of the employment relationship, the courts may prefer to be guided by the express terms of the contract rather than the surrounding circumstances of the situation, as in Consistent Group Ltd v Kalwak (2009) [3]. Where the liability is criminal and not civil, and so imposes personal criminal penalties rather than claiming on an insurance policy, the court may be less likely to question the validity of the written contract to find the person engaging the worker as liable. Yet the reality may be that the worker has no effective control over his job and so should be seen effectively as an employee, and the person engaging him should actually be criminally liable under section 2 of HSWA, if not liable under section 3(1).
The underpinning issues here involve the role of health and safety law. Some people may see this is a burden on the self-employed whilst others may simply see it as evidence of good management. Certainly HSE would see health and safety management as an integral part of good management, as made clear in their guidance note HSG65 ‘Managing for Health and Safety’ [4]. In this respect, failure to enforce health and safety law would be tantamount to allowing an organisation to be run without effective management controls. Moreover, criminal health and safety law is designed to be proactive not reactive, and the exemption of certain categories of worker from legal liability undermines this proactive effect, allowing some workers to only incur legal liability retrospectively, where their action lead to injury to a third party.
Another issue here is whether the state should impose legal obligations to protect persons from their own actions. Although we currently require this in respect of motoring law as regards the wearing of seat belts, we do not do so in respect of dangerous pursuits such as rock climbing. However, these are voluntary actions which are not subject to commercial pressures, whilst health and safety is intrinsically involved in the commercial nexus. The danger is that workers who are able to operate without following health and safety rules may ultimately undercut those who do follow such rules, with the result that such commercial pressure could effectively lead to a gradual erosion of health and safety standards in certain industries.
The issues here will be debated for some time and it would be useful to see what the impact is on the accident statistics as a result of this deregulation. It is well known that the self-employed are disproportionately likely to be killed or injured at work, with a fatality rate over twice that for employees or workers [5]. The danger is that this change in the law will simply exacerbate the situation. We will have to wait on developments in this area to evaluate the impact of this change, but we must be prepared to reregulate if the statistics show that it has led to a worsening situation.
David Branson is a coordinator of health and safety courses at Middlesbrough College
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