Health and safety exemptions: List of activities is a recipe for confusion
I have written a few blogs about the government’s proposals to exempt the self-employed from the Health and Safety at Work Act unless they are on a prescribed list.
Well yesterday the HSE published that list. It is in a consultation document which, according to the HSE “sets out the principles of how self-employed persons, except those undertaking duties on the proscribed list will be exempted from….the Health and Safety at Work Act”. Or at least that is what it says it does.
In fact it does the opposite. It asked for views on the list of activities of self-employed people who will NOT be exempted.
However that aside, it is worth looking at the list, because, after all, this measure was meant to have been brought in to “remove burdens” and “cut red-tape”.
Now what the HSE is asking is whether the definitions they are proposing are clear enough. Well why not have a look? If you can tell me what most of these mean then I take my hat off to you because I have not got a clue with some of them (and it is my job to know).
Lets take a few examples.
The first on the list is agriculture. This includes “any arboricultural activity, including the cultivation and maintenance of trees, shrubs and other woody plants”. So are self-employed gardeners exempted from the act if they work with flowers but not trees? If they work with both, are they exempt when they are cutting the lawn but not exempt when trimming a shrub? I have not a clue. This may sound pedantic but we are talking of tens of thousands of workers here, in a relatively dangerous profession.
Chemicals is just as confusing. On carginogens, the proposed regulations do not say which chemicals are covered but refer you to COSHH. Go there and they refer you to another set of regulations, CHiP (which are being withdrawn in a few months anyway). I could find nothing on the HSE website that definitively lists what ones are covered. So if you are self-employed and working with diesel, are you covered by the Act or not?
The same section says that any substance “for which a risk assessment…..has shown to be a potential cause of occupational asthma”. Does this mean that a self-employed baker who is working with flour (a potent cause of asthma) is exempt if they have not bothered to do a risk assessment? Is a self employed cook exempt when cooking steak but not when using flour to bake bread?
I could go on but I think I have made my point. However these are not a few theoretical scenarios. These three examples, gardening, workers who use diesel (including drivers) and catering workers are groups where there are a massive number of self-employed workers, and they all have their dangers. How on earth are any of them going to know what their legal obligations are?
And even in those that are a bit more straightforward, such as asbestos exposure where it is clear that anyone working with asbestos is covered is not nearly as clear cut as you might think because most people exposed to asbestos do not know they are working with asbestos. They should have a duty to protect themselves and others because there COULD be asbestos. Take the example of someone putting up pictures in a gallery. Are they only covered if they are told there is asbestos? Of course the HSE could argue that they might be covered by Regulation 2 of the CDM regulations, but how many art gallery attendants would know whether they are or not?
The whole thing is a mess from beginning to end. It is a mess because it is based on a stupid concept that is only being pushed through because of the deregulatory mania of this government who are obsessed with trying to enact one of the few real deregulatory measures on health and safety that they are allowed to under European Law regardless of the human cost.
At present the law is clear. Anyone who is involved in work activity whether an employer or self-employed is covered by the Health and Safety at Work Act. Simple. If this group of zealots get their way we will have mass confusion with most self-employed people not having a clue as to their responsibilities, and the only winners will be the consultants that they have to employ to advise them of their legal position. Although, unless we stop this Bill becoming law it will also mean more business for doctors…..and undertakers.