Relaxing health and safety laws

On 13 April 2015, the Social Action, Responsibility and Heroism Act (SARAH) came into force. The explanatory note issued to accompany SARAH highlights that it has not changed the existing framework around claims in negligence or for breaches of statutory duty. There has been consistent comment that SARAH adds nothing to the current legal landscape, given that section 1 of the Compensation Act 2006 already includes provisions which a court may (but not must) take into account when determining any question of negligence. 

SARAH now requires a court, when determining whether someone has behaved negligently, to have regard to three additional factors when considering a person’s actions: 

• Whether the person was acting for the benefit of society or any of its members (social action);

• Whether the person demonstrated a predominantly responsible approach towards protecting the safety or interests of others (responsibility); and

• Whether the person was acting heroically by intervening in an emergency to assist an individual in danger (heroism).

?From its introduction as a Bill in June 2014 to the time it received royal assent, SARAH continued to be subject to criticism for its brevity and lack of clarity around terms such as ‘predominantly responsible’ and ‘heroically’. Chris Grayling, the previous justice secretary who introduced SARAH, hailed it as a signal that ‘those who are trying to do the right thing should believe that the law will be on their side’ and said it would ‘slay much of the “elf and safety” and jobsworth culture that holds back so much of our society’. 

There has been widespread criticism of SARAH, including from Lord Pannick, who stated: ‘This always was and it remains the most ridiculous piece of legislation approved by parliament in a very long time… a text that would barely muster a pass mark in GCSE legal studies… a pitiful creature of a Bill.’ Those opposed to SARAH see it as an attempt to introduce further health and safety legislation that favours the insurance industry though the back door. What effect SARAH will have, if any, remains to be seen.

Löfstedt recommendations

The 2011 Löfstedt report, ‘Reclaiming health and safety for all’, is set to bring about further changes to the health and safety landscape. Professor Löfstedt in his report recommends that self-employed persons be exempt from health and safety law where they pose no potential risk of harm to others through their work activity.

Currently, section 3(2) of the Health and Safety at Work Act 1974 (HSWA) places general duties on everyone ‘at work’, including the self-employed, and states: ‘It shall be the duty of every self-employed person to conduct his undertaking ?in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not ?being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety’.

Section 53 of HSWA provides a broad definition as to who is a self-employed person. It says: a ‘self-employed person means an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others’.

The proposed change to section 3(2) HSWA is to be implemented by the Deregulation Act 2015 (DA), which received royal assent in March 2015. Clause 1 of the DA will mean that, from 1 October 2015, self-employed people will be exempt from section 3(2) unless they are carrying out ‘an undertaking of a prescribed description’. The prescribed activities listed in the schedule are:

• Agriculture, including forestry;

• Work with asbestos;

• Construction;

• Gas;

• Genetically modified organisms; and

• Railways

If the activity is not in the list of prescribed activities, then the self-employed are not obliged to conduct their work in a way which minimises health and safety risk, which includes where the activity may be risky but only to the self-employed themselves. Although the amendment is being brought into effect to save individuals and businesses money in terms of time and compliance, no thought has been given to what burden an individual may be to society if they hurt themselves through carrying out risky activity. 

It should be noted that self-employed persons who are employers remain subject to health and safety duties to their employees by virtue of HSWA 1974, section 2, and they also retain their duty to persons other than their employees by virtue of HSWA 1974, section 3(2).

There has been suggestion that the amendment is confusing, leading to people not knowing whether they are subject to section 3(2) of the HSWA or not. The Trades Union Congress general secretary, Frances O’Grady, commented: ‘This is virtually a licence to kill. It will be a green light to cowboys and incompetents to cut corners and take risks… It undermines the simple message in the Health and Safety at Work Act that everyone should be covered.’

It has been the government’s plan, ever since they commissioned Lord Young’s 2010 report ‘Common sense, common safety’, to have less ‘burdensome’ health and safety legislation. That report made recommendations for improving the way health and safety legislation is applied and for tackling the compensation culture. Commentators have said that stripping down health and safety legislation would result in an increased risk of injury and death.

Provisional annual data released by the Health and Safety Executive (HSE) has revealed there has been an increased rate of fatalities at work in 2014/15. Some 142 workers were fatally injured at work between April 2014 and March 2015 (a rate of 0.46 fatalities per 100,000 workers). This compares to 0.45 fatalities per 100,000 workers in 2013/14.

There were key areas identified as high risk where the average deaths per 100,000 were significantly ahead of the overall average:

• Some 35 fatal injuries to construction workers were recorded, amounting to 1.62 deaths per 100,000 workers, compared to an average of 45 deaths in the past five years and a decrease from the 44 deaths recorded in 2013/14;

• Some 33 fatal injuries to agricultural workers were recorded, which is a rate of 9.12 deaths per 100,000 workers, the same as the average of 33 deaths in the past five years, but an increase from the 27 deaths recorded in 2013/14; and

• Five fatal injuries to waste and recycling workers were recorded, a rate of 4.31 deaths per 100,000 workers, compared to an average of six deaths in the past five years and an increase from the four deaths recorded in 2013/14. 

It remains to be seen whether the average deaths will continue to increase overall or in certain sectors as the effect of streamlined and less onerous health and safety legislation takes effect.

CDM Regulations 2015

Finally, new Construction (Design and Management) Regulations 2015 (CDM Regulations) came into force on 6 April 2015. The new CDM Regulations are intended to ensure that health and safety issues are properly considered during a project’s development, so that the risk of harm to those involved at all stages, from build to use and maintenance, is reduced.

• The CDM Regulations make a number of changes including:

• Extending the scope of the regulations to include domestic clients; 

• Removing the role of the CDM coordinator;

• Introducing a new duty holder – the principal designer;

• Appointment of a principal designer and principal contractor if two or more contractors are on site; and

• Changing the HSE project notification threshold.

There will be a six-month transition period ending on the 6 October 2015, to bring current project arrangements in line with the new legislation.

The CDM Regulations face serious criticism that they were rushed out without adequate consultation. The final text of the regulations was not published until 2 April 2015 and the regulations came into force on the 6 April 2015. The traditional Approved Code of Practice (ACOP) has been replaced with ‘guidance’, which may lead to lack of clarity since the guidance may not have the same level of gravitas and recognition within the construction industry as the customary ACOP.

There have been concerns raised within the construction industry that the extension of the CDM Regulations to cover smaller-scale domestic works could lead to chaos in the short term. Contractors on small domestic projects are unlikely to have had to comply with the CDM Regulations previously, and may need to hire a consultant to assist, passing on the cost to the client. 

An unintended consequence could be that responsible contractors will risk losing business, if and when competitors ignore the regulations to charge lower prices. Although proper regulation at all levels of industry is of course welcomed, the fear is there will be a variety of interpretations of the new regulations which will lead to inconsistency across the industry as non-compliance. SJ

Zahra Nanji is a solicitor at ?Leigh Day @LeighDay_Law www.leighday.co.uk