Deregulation Bill

Written evidence submitted from Ragnar Lofstedt PhD (DB 06)

The Löfstedt Report: Health and Safety Law and the Self-Employed

My November 2011 Report ‘Reclaiming health and safety for all: an independent review of health and safety legislation’ recommended

‘Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others’.

The Government, in its response to my Report, accepted my recommendation, which it now intends to implement through a clause in the Deregulation Bill. I am writing to the Bill Committee to clarify the intention behind my recommendation.

Currently, Section 3(2) of the Health and Safety at Work etc. Act (HSWA) 1974 imposes a general duty on all self employed persons to conduct their work in such a way that – so far as is reasonably practicable - they, and others affected by their activities, are not exposed to risks to their health and safety.

My Report noted that this approach differs from European legislation, which does not generally apply to the self-employed, except in certain prescribed activities (e.g. on temporary or mobile construction sites). Individual European states vary in their approach to the application of health and safety law: in Sweden, only those self-employed whose activities are considered particularly hazardous or risky to others are covered by the law; in Germany, the law only applies to those whose activities may affect the health and safety of others.

In his 2006 report, Lord Davidson identified the inclusion of the self-employed in HSWA as gold-plating, but noted that some self-employed occupations (e.g. agriculture and construction) pose a significant risk of harm to others and suggested that the inclusion of the self-employed in any future legislation should be considered on a case-by-case basis.

While I recognised in my Report that, in practice, there was little prospect of those self-employed persons in low risk activities facing inspection, but there was a perception that health and safety law was inappropriately and disproportionately applied to these individuals. This was the basis of my recommendation that those self-employed whose work activities pose no potential risk of harm to others.

Although I did not give examples in my Report of what, in this context, might be considered as low or high risk activities, at subsequent speaking events I have given suggested that clerical type work e.g. a software developer or writer, would be considered as posing low risk to others, while construction work would be considered as high risk. I was clear in my report that such high risk occupations should not be exempt from HSWA. I was also clear that any exemption to the law should not affect the duties that others have towards the self-employed.

I hope this clarifies the intention behind my recommendation.

I would also like to flag that, in its response to my Report, which was published on the same day, the Government said:

The Government will ask HSE to take urgent action to draw up proposals for changing the law to remove health and safety burdens from the self employed in low-risk occupations, whose activities represent no risk to other people. This will bring Britain in line with other European countries, who have taken a more proportionate approach when applying health and safety law to the self- employed…’

and

‘…It is clear that the fear of inspection and possible transgression for minor transgressions of the law is a cause of unnecessary concern for the self-employed and –where the individual is carrying out low risk activity such as office-type work – delivers no real benefit to the wider population. Where the activities of self-employed people could pose a risk to themselves or others, for example in the building trades, the law will continue to apply’.

I believe this position was consistent with the spirit of my recommendation.

February 2014

Prepared 5th March 2014