If you’re self-employed and work alone is it reasonable to suggest that therefore you should be exempt from health and safety law? This is not just a hypothetical question; it’s a proposal from the Löfstedt Review and in this post I’ll examine this seemingly sensible suggestion – and add a note of caution.
The Situation at Present
In the UK the Health and Safety at Work Act imposes a general duty on self-employed people to conduct their work in a way that ensures that, so far as is reasonably practicable, they and other persons affected by their activities are not exposed to significant risks. This is backed by the Management of Health and Safety at Work Regulations, which require the self-employed to carry out a suitable and sufficient assessment of any significant risks to themselves as well as to others affected by their work.The approach by other EU Members varies. Some countries don’t apply health and safety law to the self-employed; others only apply the law to the self-employed if their activities are considered to be particularly hazardous. So for example, in Professor Löfstedt’s home country of Sweden the self-employed are only covered in relation to chemicals and machinery to protect their safety and that of others who may be affected by what they are doing. And in Germany the law does not apply to the self-employed except where their work may affect the safety of employees.
Löfstedt’s Proposed Changes
The type of work self-employed people do obviously varies widely, with some areas such as agriculture or construction carrying significant risks. In light of this, Löfstedt is not calling for a blanket exemption. Instead, he proposes only exempting from health and safety law self-employed people whose workplace activities pose no potential risk of harm to others.
He argues that an exemption for the low risk self-employed ‘…. will help reduce the perception that health and safety law is inappropriately applied’ and will complement the HSE’s recently revised guidance for employers on home workers, while not affecting the duties that others have towards self-employed persons. He stresses however that it is vital that this change is accompanied by clear guidance to ensure that the limited scope of the change is clearly understood as not all the self-employed will be exempt.
While bodies like the Federation of Small Businesses, the British Chambers of Commerce and the Institute of Directors have welcomed the idea, RoSPA, IOSH the TUC and many others in the health and safety community have sounded a note of caution that such a move could actually lead to a reduction in standards, if not an increase in injuries and work related ill health. The HSE has yet to consider proposals for consultation on how to effect this change.
As ever, the devil will be in the detail. For example, when looking at the cost benefit analysis it will be necessary to consider broadly the number of people deemed to be both self-employed and working entirely alone in different sectors. And it will also be necessary to obtain reliable data on the number of work related injuries suffered by such self-employed people, for example, using accident ad emergency treatment information. Any assessment based on RIDDOR (the Reporting of Injuries, Diseases and Dangerous Occurrences) data alone (which are notoriously incomplete) is likely to be inadequate.
Exemption may be fine for the self employed working at home on IT based tasks but it could be difficult where the self employed person is working in a very high risk setting, even if they are on their own.
One might envisage, for example, construction workers engaged on refurbishment in three adjacent houses. In the first house the self-employed person is working with a self-employed mate, so despite any amendment, existing H&S duties would still apply; while next door another self-employed builder who is working alone but doing similar work could claim exemption. And in the house next to him/her is a lone worker who is actually an employee and is thus covered by the general duties in the HSW Act as well the requirements of specific regulations. The hazards and associated risks faced by all four people are the same. The first pair and the worker at the third house would still be obliged by law to use safe access equipment and PPE, for example. The worker in the middle could claim exemption from such requirements, arguably lowering costs and gaining an unfair competitive advantage. And his lower standards might make it harder to convince the others in the adjoining properties to adopt the correct precautions. In all three cases however, if serious injuries were to occur, there could well be risks to emergency services personnel as well as calls on the NHS and the public purse.
Once the refurbishments were complete one might envisage inside each of the three houses self-employed people who are at work. In the first house a lone software developer, who currently is supposed by law to do some sort of risk assessment, decides that his/her workplace is ‘low risk’ and in any case sees no prospect of enforcement. He/she decides that little special action is necessary. If and when the law changes however they would still need to assess the situation to assure themselves that they are indeed exempt.
In the second house a couple, both of whom are self-employed, are working in an environment which is ‘low risk’. They currently do little out of the ordinary to ensure their H&S, but with the change in the law they worry about whether their recent decision to form a company might make one or both of them employees thus eliminating their entitlement to claim exemption.
In the third house a self-employed person who is actually doing small scale contracted out manufacturing work in their garage for another enterprise is using toxic materials that may damage their health and possibly pose a risk to the environment but without endangering the safety or health of any other individual. Would they be exempt?
The point of this little story is simply to illustrate the great variety of circumstances in which people work on their own, either as genuinely isolated and ‘low risk’ individuals at one extreme, through to only nominally self-employed persons in high risk contexts at the other. And the situation can be very fluid as self-employed people move over time from isolated to collective working environments, even during the course of a working day.
The great advantage of the law as it currently stands is that the firm of one person, just like the firm of two – or two thousand people – has to determine what needs to be done to ensure health and safety – so far as is reasonably practicable – by making a suitable and sufficient risk assessment and then acting in a proportionate way. (If there are no significant risks, no action is required.)
In the same chapter of his Review in which he addresses this issue (Chapter 4) Löfstedt accepts that in general the need for regulation should relate to the scale of risk rather than the size of an undertaking. Yet by proposing an exemption for the genuinely self-employed person working alone he is in effect saying that this principle evaporates when the undertaking involves less than two people.
Philosophically this is the territory of the robust libertarian who asserts their right to smoke in the open air, go climbing in winter alone, eat vast quantities of unhealthy food, sail solo across the Atlantic and so on. Emotionally it is an approach to risk acceptance that I would defend to the utmost. Intellectually and practically however I have long ago got used to the idea of wearing my seat belt, donning my motorcycle crash helmet and not feeling hard done by as a result of not being able to buy class ‘A’ drugs over the counter.
At best exempting the lone self-employed will still leave the conscientious person in this category who is working on their own but at the margins of significant risk, having to make a judgement about where they stand. At worst the change will be misunderstood and will give the green light to cowboy elements in high risk settings.
The truth I suspect is that the current debate here is not really about whether it is more burdensome for self-employed people to be obliged to assess the risks they face as opposed to assessing whether they are within or without the scope of exemption. It has actually become a tiny but nevertheless totemic part of a much more enervated struggle that has been going on for several decades between two different world views; deregulation to secure the freedom of the individual versus regulation and the utilitarian disciplines of the collective to ensure the greatest good for the greatest number. In English political discourse this clash goes back to Hobbes and Locke and globally before that to the ancients. But in the very practical world of health and safety is not the idea of each of us having to exercise due care to protect ourselves and each other simply, as Lord Young said, ‘common sense’?
As ever, your views are welcome!