Professor Löfstedt has trashed the government’s approach to implementing his recommendation to free some self employed from health and safety law, saying it “may increase injury and death in the workplace”.
His opinions were outlined in a letter written to Lords ahead of one of the final discussions of the Deregulation Bill, the vehicle for implementing the measures. It follows the government minister Lord Curry of Kirkharle suggesting in October that the professor was “very content” with the wording of the bill.
In his 2011 review Reclaiming health and safety for all Löfstedt recommended making those who “pose no potential risk of harm to others” exempt from health and safety law. However, following scrutiny of the proposal in the Deregulation Bill’s public bill committee, the suggestion was turned on its head. Instead, all self-employed workers would be exempt unless they carried out an activity on a prescribed list, which currently includes activities such as construction, work with asbestos and work with pressure systems.
“The proposed government list of dangerous jobs that would not be exempt from health and safety law is the opposite to what I proposed and it is something that I do not support,” the letter said. “The danger with the proposed list is that self-employed individuals who are not on it will be exempt even if the jobs that these individuals do are in actual fact rather dangerous and unsafe. In other words the proposed government list may increase injury and death in the workplace something that I never intended with my original recommendation.”
The intervention follows the publication of the outcome of HSE’s public consultation on the list of prescribed activities.
Each definition received substantial support as being sufficiently clear – usually in excess of 80%. However, respondents repeatedly raised the concern that self-employed people will have to consult the crossed-referenced regulations to ascertain whether or not they are exempt. For instance, the definition of construction work references the CDM Regulations.
Some pointed out that this would either lead to greater bureaucracy or workers simply not checking whether they are or are not exempt.
When asked whether someone who is self employed would know if the law applied to them or not, 61% of respondents said no, including 71% of employer representatives, 59% of health and safety professionals and 80% of trade union officials.
However, the small number of self-employed people that responded to the consultation were more favourable, with 65% saying they would understand. Though a key theme to emerge from self employed and general public responses was that the self employed will assume that the exemption will apply to all of them.
The EEF, the manufacturing trade association, said in its response: “The current proposals being put forward on exempting the self employed are not fit for purpose in their current form.
“We think that prescribing work activities is likely to have unintended consequences. Lists of prescribed activities can never be fully inclusive or the definitions sufficiently precise. It will inevitably mean that some self employed whose work activities pose a risk to others become exempt. This is not a desirable outcome.”
Preston City Council summoned the spirit of Lord Robens, the architect of the Health and Safety at Work Act, while taking a swipe at HSE. “It is difficult to understand why HSE are making recommendations in supporting this change... I find it unimaginable that the body responsible for the HSWA wants to make such a significant change after 40 years of implementation.
“This is a situation that Robens never wanted to see – HSWA has to be all embracing and based upon the premise that if you create a risk to other persons you should be regulated. If you don’t create risks you won’t be regulated – what could be simpler than that?”
RenewableUK, the offshore wind trade association, said: “The proposal could lead to a perceived ‘two tier’ H&S landscape with the resulting safety culture problems that could arise.”
But the harshest criticism for the proposals was levelled by the unions. “As we strongly disagree with the proposal and have made it clear that we believe that this proposal is a recipe for dangerous confusion,” Unite said, “it follows that we do not believe that a self-employed person would know if the law applies to them or not, especially as the effect of regulations is in many cases to make the definition more complicated.”
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