Is exemption the answer?

Significant changes on how the self-employed are covered in health and safety law are afoot, but Roger Bibbings of the Royal Society for the Prevention of Accidents (RoSPA) has some concerns

The Löfstedt review of health and safety legislation confirmed that our health and safety law is broadly fit for- purpose but some of its detailed proposed changes may actually end up making things more complicated than they need to be.

One of Löfstedt's ideas was to exempt self-employed business people from health and safety law but only if they really are working alone in low hazard sectors. Exemption would not apply to those whose actions could affect the health and safety of others, including members of the public. Also, many selfemployed people such as consultants and designers would still have statutory duties to ensure that their decisions and/or advice did not adversely affect others' safety and health.

In defending his proposal, Professor Löfstedt has said that the aim here would be to remove roughly one million very low risk workers from the scope of health and safety law and thereby help reduce the perception that this law is 'inappropriately applied'.

Putting theory into practice
During the recent consultation on implementing this change, RoSPA sounded several notes of caution. While at first glance such a move might seem sensible and could work well for IT workers based at home, an exemption as proposed could make knowing what to do difficult - for example, a self-employed person working on their own but in a higher risk, non-exempt setting. A truly self-employed person in these circumstances would not have to make use of safety equipment whereas the lone worker, who was actually an employee, would have to. A self-employed worker choosing not to adopt necessary precautions might then have an unfair economic advantage over competitors doing exactly the same work but in association with others.

The truth is that in a proven regulatory regime where the level of duty to work safely is proportionate to the level of risk, millions of self-employed lone workers working at home, for example, are, de facto, already exempt. If there is little or no risk, the law requires them to do very little, if anything. They will never be routinely inspected. And they are not going to sue themselves if they have an accident.

What is worrying however is that, if this change is not handled properly, it could be misunderstood and end up giving the green light to 'cowboy elements' in higher risk settings. And then there is the whole problem of the self-employed who in practice actually work for clients as employees.

At best, this change may still leave the conscientious selfemployed business person, who works at the margins of significant risk, having to make some sort of assessment about whether they are inside or outside the terms of the exemption. At worst, it could lead to all self-employed people wrongly assuming that health and safety law no longer applies to them in any circumstance.

The challenge of allaying misperceptions could be much better dealt with in our view if the Health and Safety Executive (HSE) crafted and publicised good, simple guidance for the selfemployed, reminding them to deal with risks in a sensible and proportionate way.

There is a view in some quarters that individual entrepreneurs should be free to accept the risk level they choose to create for themselves, particularly if their lack of attention to health and safety results only in injury to them and to no one else. On the other hand it can be argued that even sole traders still have obligations to make sure that they do not injure themselves through their recklessness and thereby impose avoidable costs on the NHS and other publicly funded services.

What Löfstedt conceded was that many of the concerns of the self-employed about health and safety stem actually from the fear of being sued after an injury or health damage to others due to their negligence. So it is important that all self-employed workers realise that any exemption from criminal law will not eliminate their common law duties of care.

Other organisations, such as IOSH and the TUC, have also raised concerns about the proposals. Although the exemption will not apply to self-employed construction workers, the construction union UCATT has aired worries that the Government could extend changes to that industry in the future. (During 2011/12, 22 of the 49 worker fatalities in the construction industry involved the self-employed, compared to 18 self-employed deaths out of a total of 50 in 2010/11). Risk and not the size of an organisation remains the deciding factor in influencing the extent of action required by law.

Logically this fundamental principle should not simply vanish when the work is being carried out by one self-employed person. In my view, there is a real lack of evidence that these proposals are a priority in terms of improving health and safety outcomes. Surely, if the self-employed are going to be asked to think about health and safety at all, isn't it better to ask them to think if there are any significant risks in their work and what they might need to do about them - rather than trying to get them to follow a complex decision-making process to work out if they are outside or inside the terms of exemption?

Ultimately, isn't education rather than deregulation the real answer here?