Self-employed safety rights: Government moves, but not enough
Yesterday the Deregulation Bill completed its passage through the Lords. According to the Government, this Bill will ensure a “reduction of burdens resulting from legislation for businesses or other organisations or for individuals”. One of the proposals was to change the Health and Safety at Work Act to remove most self-employed people from its provisions. The Government’s position on how it is going to do that has changed several times over the past year and a half since they published the Bill and I have been regularly posting blogs on the stupidity and danger of the proposals.
So what was the final outcome? The report on the debate is here, on pages 249 to 254, but it is hard to get an idea of what it actually means from the discussion, but I think that, we can claim that the result is a considerable victory, but a mixed one.
The Government totally reversed their policy of excluding every self-employed worker who was not on a specific list, which was their policy up until now. Instead they agreed that any self-employed person who poses a risk to other persons (workers or the public) would be covered by the Health and Safety at Work Act.
This sounds good (compared to what they proposed) but they refused to agree an amendment that actually said that and instead insisted in pushing through a clause that stated that defining would be covered would be done through regulations and those regulations MAY be framed to ensure that all self-employed people who pose a risk will be covered by the Act. So there is nothing to stop them from coming up with regulations that do not do this and instead exempt a wider group in the future.
They have however drafted regulations which state that an undertaking (effectively anything that is done by a self-employed person) will be covered by the Health and Safety at Work Act if it involves the carrying out of any activity which—
- is listed in the Schedule; or
- where not listed in the Schedule, may pose a risk to the health and safety of another person (other than the self-employed person conducting it or their employees).
What does this mean? Well it is complicated. If the regulations are approved, and that can not be until the next Parliament, all self employed people in those sectors listed in the regulations, which are agriculture, construction, railways and gas, will be covered regardless. Outside these sectors, any self-employed person who poses any risk to others will be covered.
This means that they will be able to be prosecuted if they injure of kill anyone as clearly there was a risk to others. However the only way they will know if they pose a risk to others is if they do a risk assessment, but they will not know if they are required to do a risk assessment (under the HSW Act) until they actually do one, so all self-employed people will effectively still have to do a risk assessment although, as at present, it will not have to be a written one. So in reality the difference between the new regulations and the current requirement is that self-employed people will not be breaking the law if they kill or injure themselves!
However stupid it is, I have to admit that this is a major improvement on the Governments previous position and only came about because of the tremendous campaigning by the trade unions on the issue, and the very strong support of the opposition, in particular Lord McKenzie, the former health and safety Minister. But it still creates a completely confusing situation for self-employed people. Equally worrying is the fact that, despite attempts by the opposition, it is only enshrined in the proposed regulations and so potentially could be altered by a future Government.
So what we have ended up with is a complete mess. I do not know how any self-employed person can be expected to know whether they are covered or not in those sectors not specified in the schedule, or what their legal duties are. While the outcome is a massive improvement in the earlier proposal by the Government, it is unnecessary legislation that no-one wanted, aimed at resolving a non-existent problem. Before this hare-brained idea saw the light of day there was no confusion amongst the self-employed as to their responsibilities. The only problem was that self-employed people were in fact far more likely to injure or kill themselves than other workers.
The Government’s claims that this will remove “burdens” is clearly nonsense. All it will ado is add to the confusion and uncertainty that self-employed people face in knowing what they should be doing to protect themselves and others, and undermine what had been a very simple and clear piece of legislation.
The Bill now goes back to the Commons and is likely to become law by the end of the month. The Regulations cannot come into effect until approved by both houses of parliament and that cannot happen before the election. The TUC view is that, while last night’s about-face provides a considerable improvement, it is not enough and we shall be asking the next Government to reverse this proposal in its entirety by amending the Health and Safety at Work back to its previous, simple, wording.