Health and safety laws and the self-employed have always led a contentious dance. Before October 2015, those who were self-employed were obliged to manage the health and safety risk to themselves and others which could potentially arise from their work. This applied regardless of the type of activity undertaken and the possible risk.
Naturally, such a blanket provision, (deriving from section 3(2) of the Health and Safety at Work etc. Act 1974 (HSWA 1974), was unpopular. Self-employed workers were forced to produce detailed risk-assessments, method statements, and ensure they had all the necessary policies and procedures in place to minimise any risks uncovered.
Quite a burden if you were a one-person operation working on razor-thin margins.
Although some high-risk activities justified such tight control and onerous measures, the regulations were criticised for being over-burdensome, especially when the only risk presented was that to the self-employed person themselves.
Professor Löfstedt, in his report ‘, Reclaiming health and safety for all: An independent review of health and safety regulation’, suggested that rather than impose such a burden on businesses, self-employed people undertaking activities which posed no risk to others should be exempted from health and safety law.
The government implemented this recommendation in the form of the Deregulation Act 2015 (DA 2015).
How is ‘self-employed’ classified for health and safety law?
Under the HSWA 1974, a person is self-employed if they, “work[s] for gain or reward otherwise than under a contract of employment, whether or not he himself employs others”.
Are there any cases where a self-employed person would not be exempt from health and safety regulations under the DA 2015?
If you have employees, you will not be exempted from health and safety compliance. This is also the case if you undertake ‘prescribed activities’ which includes work with or on:
- farms and agriculture, this includes all horticulture, fruit growing, seed growing, dairy farming, livestock breeding and keeping (including the management of livestock up to the point of slaughter or export from Great Britain), forestry, the use of land for grazing, market gardens and nursery grounds, and the preparation of land for agricultural use.
- construction where the Construction (Design and Management) Regulations 2015 apply
- situations where the Gas Safety Regulations 1998 apply, i.e. landlords
- genetically modified organisms within a research laboratory or a biotechnology production facility and not released into the environment covered by the Genetically Modified Organisms (Contained Use) Regulations 2014,
The tricky ‘catch-all’ provision
Even if the work you undertake as a self-employed person does not appear on the ‘prescribed list’, you may still be subject to health and safety regulations. A ‘catch-all’ provision which provides that any other work that may risk the health and safety of another person, i.e. a hairdresser who works with chemicals, or a technical writer producing safety manuals which will be relied on, may mean you must fully comply with health and safety laws.
Although it seems contrary to the spirit of the DA 2015, which was enacted to cut the amount of red-tape which applied to small businesses, to protect your best interests, an assessment of your economic activities should be conducted to ensure they do not fall into the ‘catch-all’ provision.
Ideally, the details of such an assessment should be recorded, in case you are subject to a health and Safety Executive (HSE) investigation in the future.
Where can I go to for further advice on health and safety compliance and self-employment?
The HSE website devotes a section to assisting self-employed people with deciphering their health and safety obligations.
The main points which the HSE suggests should be considered include:
- the location where the work activity is taking place and whether that area is accessible by others, including the public
- the equipment and/or materials which will be used which might be inhaled or otherwise encounter others
If the activity is taking place in an area nearby to the public or others, then it is likely that the activity may pose a risk to their health and safety. Likewise, if the activity creates dust, fumes, sparks, or creates a trip or burn hazard, then the activity will in most cases cause a risk to the health and safety of those nearby. In these cases, the self-employed person will have a duty under HSWA 1974, s 3(2) and must act to remove or reduce the possibility of any harm being caused. Any failure to do so may lead to prosecution, regardless of whether any accident or injury results.
The safest way to check whether you need to comply with health and safety regulations is to have your work practices reviewed by an experienced lawyer. If you are being investigated for a breach, it is crucial to seek expert legal advice immediately. Being subject to prosecution can destroy your business reputation, your finances (if convicted), and your peace of mind. A health and safety lawyer and/or barrister can provide an emergency response to an incident, ensure your best interests are protected in an investigation and build a robust defence if prosecution/sentencing occurs.
Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law. If you require legal representation, please contact Tanveer directly at firstname.lastname@example.org or via his chambers, 4-5 Gray’s Inn Square. for more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk