Brexit: What are the implications for Health & Safety Law?

It is said that Zhou Enlai, a prominent Chinese communist leader, responded to a request to comment on the significance of the French Revolution to the effect that it was too soon to say.

Setting aside the dubious provenance of this attribution (he was probably referring to the events in Paris in 1968 not 1789), it would be a brave commentator indeed who would commit to a firm view at this stage as to how the vote to leave the European Union may affect the law in relation to health and safety.

There is no doubt that for some time many businesses and employers have been concerned about what is widely perceived to be a burden imposed by the need to comply with a seemingly ever increasing number of rules and regulations in this field.

It is also the case that most health and safety legislation in recent time has emanated from EU Directives which, in accordance with our Treaty obligations, the UK Government has been required to incorporate into domestic legislation.

The level of concern was sufficient to prompt the previous coalition Government to commission a review into Health & Safety legislation. Now would appear to be an appropriate time to revisit the report of Professor Ragnar E Lofstedt delivered in November 2011, entitled Reclaiming Health & Safety for All.

Professor Lofstedt concluded that, in general, “there is no case for radically altering current Health & Safety legislation.”

He reported that the outcome of his investigations was to the effect that “there is a view across the board that the existing regulatory requirements are broadly right…that regulation has a role to play in preventing injury and ill health in the work place [and] proportionate risk management can make good business sense”.

Nevertheless, he made a series of recommendations in an effort to address those factors which “drive businesses to go beyond what the regulations require and beyond what is proportionate”.  In doing so, he sought to “enable businesses to reclaim ownership of the management of Health & Safety and see it as a vital part of their operation rather than an unnecessary and bureaucratic paperwork exercise”.

These proposals, which have been largely implemented, included the exemption from Health & Safety law of those self-employed whose work activities posed no potential risk of harm to others, a review by the HSE of their Approved Codes of Practice and simplification of the regulatory framework through implementation by the HSE of a programme of sector specific consolidation of regulations.

In his report, Professor Lofstedt acknowledged the increasing role of the European Union in driving UK Health & Safety regulation. His report analysed the extent to which these were considered to be of benefit and where there was room for improvement.

He reported that a number of regulations introduced as a result of EU directives were considered by businesses to be helpful. He gave the specific example of the Provision & Use of Work Equipment Regulations and reported that responses to his survey suggested that these led to improved working practices without causing significant financial concerns.

His report also cited the example of the Manual Handling Operations Regulations and referred to a case study of an organisation reporting a 6% reduction in sickness absence and a 50% fall in loss time due to accidents directly as a result of measures introduced to comply with this law.

His report went on to comment on specific regulations which were widely considered to deliver minimal benefit commensurate with the expense and effort involved in compliance.  These included the Health & Safety (Display Screen Equipment) Regulations 1992. Professor Lofstedt highlighted the fact that employers had a concern about the validity of the requirement to provide eye tests when many employees regularly use personal computers, laptops and other devices outside the work place.

In due course, it may well be that regulations of this type will be subject to renewed scrutiny. It is conceivable that some regulations may be revoked but it remains to be seen what overall impact this may have on business.

It is worthy of comment that Professor Lofsedt’s report contains a quotation from a former Chairman of the EU Scrutiny Committee in the House of Commons to the effect that “probably 90%” of all EU laws currently in force in the UK would have existed in any event.

The law constantly evolves in response to changing times and circumstances. The primary legislation governing Health & Safety obligations remains the Health & Safety at Work etc. Act 1974, implemented without any reference whatsoever to any EU Treaty obligations.

It is inconceivable (and no politician has suggested otherwise) that there will be any fundamental amendment to the 1974 Act.  The primary duties contained within the Act will remain unchanged.  Whilst certain specific regulations may no longer be on the statute book it may well be that, as they assess the extent to which duty holders have complied with their statutory obligations, the HSE will have due regard to the detail contained within EU Directives in order to assess the extent to which duty holders have done all that is reasonably practicable to ensure health, safety and welfare to those to whom they owe a duty.

As most of the regulations implemented through EU Directives have been on the statute books for many years it may well be that HSE Inspectors will adopt them as the benchmark for determining whether or not they consider that an offence has been committed and whether enforcement action should follow.

In the fullness of time it may well be that the decision to leave the EU will have little if any impact on the obligations imposed on businesses to comply with Health & Safety law. For the moment those who owe duties under existing Health & Safety legislation may wish to pay heed to the words of wisdom issued by the Government many years ago, immortalised on posters, tea-towels and crockery throughout the land: Keep Calm and Carry On.

Mark Quigley

27 June 2016.

(Mark is a Partner and Head of our Regulatory department. As well as representing clients he regularly delivers training, often appearing alongside representatives of various regulators. Mark is conducting a complimentary seminar on 30th June entitled 'CQC Update', click here for more details).