New health and safety rules for the self-employed

What changes did the Deregulation Act 2015 (DA 2015) make in respect of health and safety regulation of the self-employed?

DA 2015, s 1 amended HSWA 1974, s 3(2) so as to remove the blanket application of the duty on all self-employed persons 'to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety'. DA 2015 limited this duty to self-employed persons conducting 'prescribed' undertakings.

The Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015 (the Regulations) sets out what these prescribed undertakings will be. The provisions consist of a list of high-risk activities which are specifically prescribed, and a catch all provision.

The prescribed activities listed in the schedule are:

• agriculture including forestry
• work with asbestos
• construction
• gas
• genetically modified organisms, and
• railways

The catch-all provision states that an undertaking is prescribed for the purposes of HSWA 1974, s 3(2) 'if it involves the carrying out of an activity...which may pose a risk to the health and safety of another person (other than the person carrying it out or their employees)'.

What are the main changes for the self-employed? What impact will these changes have on the regulation of health and safety of the self-employed?

Self-employed persons conducting undertakings which are not listed in the schedule and which do not pose a risk to the health and safety of others are therefore exempted from the scope of HSWA 1974, s 3(2) and are not subject to any duty to conduct their work in a way which minimises health and safety risks.

If a self-employed person's undertaking is not risky at all, or is risky but only to himself (if it isn't one of the scheduled activities), he is not subject to health and safety requirements.

It is worth noting that self-employed persons who are themselves employers are still subject to health and safety duties, not only to their employees (by virtue of HSWA 1974, s 2) but also to persons other than his employees (by virtue of HSWA 1974, s 3(2)). The position for such individuals is entirely unchanged.

The significant, and potentially problematic, consideration for the self-employed is that (if their business is not in one of the scheduled areas) they will have to conduct an assessment of whether their undertaking falls within the scope of the catch-all, in that it may pose a risk to others. The individual's liability to prosecution for breaches of health and safety legislation will turn on whether their undertaking falls within this provision or not, so it is imperative to get that assessment right.

It is interesting to note that concerns over self-employed people incorrectly assessing themselves for the exemption were raised from the start (in consultation and parliamentary debates), and the government's proposal was therefore initially for a longer list of specific prescribed activities and no catch-all.

However, consultation on that draft deemed it too lengthy and complicated, and the limited nature of the list to be potentially dangerous, and the current formulation was substituted. Arguably, however, this has simply returned the initial concerns which don't seem to have been addressed. The inclusion of the word 'may' in the clause, in particular, makes the scope even wider and the assessment even more difficult.

Presumably recognising this, the Health and Safety Executive has committed to providing clear guidance with information on the factors to take into account when making the above judgment, which will be made available on their website 12 weeks before the Regulations come into effect. This is detailed in paras 9.1 and 11.2 of the explanatory memorandum to the Regulations. It's worth noting however that this guidance is not yet available, nor is the promised self-employed section of the website yet sign-posted from the Health and Safety Executive's home page.

It seems likely that the focus of the Health and Safety Executive's investigators and prosecutors will also shift to whether self-employed persons are entitled to the exemption or not (ie whether they have assessed themselves correctly), as a precursor to bringing any prosecution for health and safety failures.

Another impact identified by the explanatory note, and which was the motivator for the enactment of DA 2015 and the Regulations themselves is the reduction in 'red tape' and the cost saving--by not having to follow and comply with health and safety legislation--for self-employed individuals operating without employees and in low-risk activities. This has been estimated in the explanatory memorandum at £4.7m over ten years.

What impact could this have on practitioners representing clients in health and safety prosecutions?

Following on from the above, there is arguably a whole new defence available to clients facing health and safety prosecutions, namely that they were exempt from the HSWA 1974, s 3(2) duty to comply with health and safety legislation.

There may also be new opportunities in advisory work, on the question of whether the self-employed client is exempt from the duty or falls within the catch all. Given the importance of this assessment, as set out above, individuals may well choose to seek legal advice on it.

Quentin Hunt specialises in health and safety, fraud and high profile and serious criminal cases.

Interviewed by Fran Benson. LexisNexis.