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.

Deregulation Act 2015 and Subsequent Developments

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 that 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).

Classification of ‘Self-Employed’ for Health and Safety Law

Under the HSWA 1974, a person is self-employed if they “work for gain or reward otherwise than under a contract of employment, whether or not he himself employs others”.

Non-Exempt Self-Employed Activities

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 include 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.
  • Asbestos
  • Construction: Where the Construction (Design and Management) Regulations 2015 apply
  • Gas safety: Situations where the Gas Safety (Installation and Use) 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
  • Railways

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 means that any other work that may risk the health and safety of another person (e.g., a hairdresser who works with chemicals, or a technical writer producing safety manuals which will be relied on) may require you to 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 applied to small businesses, it is important to conduct an assessment of your economic activities 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.

Investigations and Compliance

An investigation by the HSE or other regulatory body is likely to occur following an incident or a complaint regarding health and safety standards. An inspector will visit your premises to gather evidence and prepare a report. The inspector is not the person who will decide whether a prosecution is brought; this will be done by an approval officer following an evaluation of the report.

Types of Health and Safety Investigations

Health and safety investigations can vary depending on the nature of the incident or complaint. Common types include:

  • Incident Investigations: Triggered by workplace accidents or dangerous occurrences.
  • Complaint Investigations: Initiated following a complaint from an employee or member of the public.
  • Proactive Inspections: Regular checks to ensure ongoing compliance.
  • Thematic Inspections: Focused on specific risks or industries.
  • Follow-up Inspections: Ensuring that previously identified issues have been resolved.

Mitigating the Chances of Being Prosecuted

As a self-employed professional, you can significantly influence whether you face prosecution for an alleged health and safety breach. The most critical step you can take is to fully cooperate with the investigator and promptly address any identified issues. Additionally, you can mitigate the risk of prosecution by arranging an emergency response with a legal professional who can conduct an internal investigation. This way, you can gather and present evidence to the relevant authorities to demonstrate why prosecution is unnecessary and/or unwarranted.

Final words

Being prosecuted for a health and safety offence should be taken extremely seriously. Getting the right advice from the outset can mitigate the risk of a disastrous outcome that could affect your professional and personal life for years to come.

Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law. If you require legal representation, please contact Tanveer directly at tqureshi@4-5.co.uk 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.