Deregulation Bill

Written evidence submitted by Unite the Union (DB 09)

Introduction

Further to our giving oral evidence at the committee on 25 February, as previously indicated Unite is submitting this additional written evidence.

Summary

We are particularly concerned about:

· Clause 1 - Removal of health and safety duties from self-employed people

· Clause 2 - Removal of an employment tribunal’s power to make wider recommendations

· Clauses 61-65 –Exercise of regulatory functions: economic growth

Unite also believes that attempting to include such a wide range of issues in one piece of legislation is poorly thought out and confusing. In Unite’s view, pursuing the Bill in this way, and at speed, will undoubtedly lead to bad legislation and will result in detriment and increased cost to workers, their families, communities and to society as a whole.

Clause 1 Removal of health and safety duties from self-employed persons

1. Clause 1 should be removed from the Bill.

Unite is not opposing Clause 1 simply because it is deregulatory: it is a retrograde step which will severely weaken protection for all workers and seriously compromise public safety. It is in the public interest to maintain health and safety duties for all self-employed people, including, for example, those working in public places, where the public are also at risk.

2. The changes proposed are completely unnecessary as the only time the Health and Safety at Work Act can be used is in circumstances when the person does put another person at risk. If they injure another person through their work the Health and Safety at Work Act will apply. This seems a very clear position to us.

3. If the self-employed do not have duties under health and safety legislation they cannot be prosecuted for breaches of health and safety law. HSE and international research (eg in the USA) has shown that enforcement by the regulator (including prosecution under criminal law) is a strong driver for health and safety compliance.

4. Clause 1 will send a message that health and safety is not important and should just be ignored. It will encourage bad practice and reduce reporting of injuries, ill-health and near misses.

5. Clause 1 will create enormous confusion about who has health and safety duties under criminal legislation. This will impact directly on the workers who work alongside self-employed people in the workplace who must report concerns in accordance with their own duties as employees under the HSWA. The duty will not be mutual as it will not apply to the self-employed workers with whom they are working.

6. Bogus self-employment will increase across all sectors if Clause 1 becomes law. [1] More unscrupulous employers will impose self-employed status on workers to try to get out of their own responsibilities. The number of precarious workers, for example, those on zero hours contracts, in bogus self- employment, and agency workers will increase, with negative effects on society, family life and the economy as well as health, safety and welfare.

7. There is no safety reason for this change.

(1) No evidence has been produced in support of the change other than the recommendation by Professor Lofstedt in his 2011 review of health and safety regulation Reclaiming Health and Safety for All (Cm8219 November 2011) that some self-employed workers should be exempt. Prof. Lofstedt did not himself provide any substantive evidence for this recommendation.

(2) It is also important to correct any misunderstanding that Clause 1 follows Professor Lofstedt’s recommendations in Reclaiming Health and Safety for All.

Clause 1 is not consistent with his actual recommendation which is (at para 17 on page 39) – we have underlined the phrase which is not taken into account in the Deregulation Bill:

"I therefore recommend exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others".

(3) Unite does not support this situation either as this will create huge confusion about who does or does not have duties. We believe that if this recommendation were implemented in full every self-employed person would have to carry out a risk assessment first to find out if their work activities are potentially harmful - even more reason to maintain the clarity of the status quo.

8. "Prescribed undertakings"

(1) Clause 1 removes the duty from all self-employed people except those working in "prescribed undertakings". There is no information in the Bill or the explanatory notes to the Bill about the undertakings it is intended to prescribe and more health and safety regulations would have to be made to define these if Clause 1 becomes law.

(2) Those voting on the Bill will still not have a clear idea what they will be voting on with regard to "prescribed" undertakings or indeed whether such regulations will ever be enacted.

(3) Unite was sent a list of proposed prescribed undertakings late on 24 February 2014. The proposed list is inadequate and unclear - it does not cover food manufacturing or indeed any other type of manufacturing), for example. Each year over 5000 injuries in food and drink manufacturing industries are reported to HSE. This represents about a quarter of all manufacturing injuries reported. The overall injury rate in food manufacture is higher than the average for manufacturing industries generally. Transport, apart from transporting dangerous goods, is not included, and nor is electricity generation, to give just two examples, and the definitions are vague, e.g. construction merely talks about those who have duties under the Construction (Design and Management) Regulations 2007 and does not mention specific trades, e.g. carpenters, plumbers, etc.

9. Health and safety laws do not impose a significant financial burden on self-employed people now. The ministers promoting the Bill stated in 2013 they were "scrapping health & safety rules for self-employed workers in low risk occupations, formally exempting 800,000 people from health & safety regulation and saving business an estimated £300,000 a year". If these figures are to be believed this amounts to about 37 pence per self-employed person. There are an estimated 4,368,000 self-employed people (Labour Force Survey Oct-Dec 2013) and rising. ONS Statistics (2010) suggest that approximately 3 million of these do not employ anyone.

10. The work activities of self-employed may pose a risk to employees they are working alongside, or to the public.

11. Many self-employed people work in situations where they can’t control their working environment – this applies not just to more hazardous industries such as transport, but to office workers too, e.g. in the finance sector, or the police service where self-employed contractors often work alongside employees who are responsible for safety-critical work.

12. There is a high rate of fatality amongst self-employed people. According to Government statistics the self-employed are more than twice as likely to be killed as employees. There is a fatality rate of 1.2 per 100,000 for the self-employed compared to 0.5 per 100,000 for employees. Between April 2013 and January 2014 out of a total of 114 fatalities reported to the HSE (including 30 members of the public) 31 were self-employed mostly working in agriculture and construction but also in services, manufacturing, waste and recycling and retail.

13. False self-employment. Many employees who have been designated as self-employed are not at all, as employers try to avoid employment rights, paying tax and national insurance. Widespread bogus self-employment in the construction industry is one example. Unite is concerned that this practice is spreading to other industries. The use of false self-employment sees workers lose out in respect of contributory benefits including statutory sick pay, statutory maternity pay and paternity pay.

Concerns raised by Unite members include

1. Road Transport, logistics, retail distribution sector.

Unite is aware that many agency drivers and workers in the retail distribution sector may have "self-employed" status.

Whether this is "bogus" or not is another question but the effect on occupational health and safety and on public safety is potentially lethal and will be more so if health and safety duties are removed from self-employed people.

Unite professional drivers report the following:

There are many owner-drivers of vehicles of all sizes ranging from those who carry large containers to small vans. They may work dangerously long hours which can potentially put others at risk on the highway.

Agency drivers are often less well trained compared to permanent staff. One retail distribution company found that a larger proportion of their delivery lorries were being damaged by agency drivers. In one case a tailboard had caught on a post and was hanging off the vehicle and could have killed someone – it is a public safety issue too. Though this matter was reported, other instances of damage to vehicles had not been reported, eg defective steps on to the vehicle which led to an employee falling off them. The company has reduced the number of agency workers as a result.

An agency worker reversed into a recently opened branch of a fast food chain, causing damage.

Temporary workers are often wary of reporting problems which may in fact affect others’ health and safety for fear of being seen as troublemakers and not being offered work the next day. This also provides disincentives to report near misses. We have received reports that such workers have been victimised and spied upon if they do report concerns.

Temporary or agency workers are often on less favourable conditions. Examples include having to start earlier without pay, being given much faster picking rates in warehouses which lead them to have to hurry and potentially put others at risk, not being permitted toilet breaks except in official breaks (this could lead to loss of concentration as well as health problems); and because they are not trained to use equipment which is supplied to avoid manual handling, they are exposed to greater risks.

Workers whose first language may not be English may have difficulty in understanding what is required of them - including their so called "self-employed" status. They may also be bullied for these reasons.

Self-employed drivers visiting sites (for example to make a delivery) may not comply with site health and safety arrangements, e.g. keeping to speed limits or wearing PPE. If they are an employee then their employer can be contacted about their non –compliance, but not so if they are self-employed. This will be even worse if they have no health and safety responsibilities.

Self-employed workers would not be allowed to get involved with accident investigations and this will also result in lessons not being learned.

2. Agriculture

This is another industry which is highly dangerous. Just over one in a hundred workers (employees and the self-employed) work in agriculture, but it accounts for about one in five fatal injuries to workers.

In 2012-13 41% of the workers who were fatally injured were farmers; another 17% were farm workers.

The high level of deaths amongst the self-employed in this sector is illustrated by the running list of fatalities for 2013-14 (April 2013 to January 2014) on the HSE website. Out of 31 self-employed people killed so far, 12 were working in the agricultural sector.

3. Construction Sector

Unite is deeply concerned about the continuing prevalence of bogus self-employment in the construction sector. Clause 1 will significantly increase the risks in an already highly dangerous industry.

Unite believes that a large number of workers in the industry are often given little or no choice as to how they are engaged. This not only severely impacts on health and safety on sites but also has serious implications for training and skills, tax evasion and national insurance contributions.

Unite is also gravely concerned that Clause 1 will give the green light to rogue traders and operatives. It should be noted that there is currently no UK equivalent to a 'licence to practise'.

There are some trades where work activities may pose risks to others and where self-employed people are very common in the industry, for example, anyone can operate as a self-employed joiner or plumber without any qualifications.

Clause 2: Removal of Employment Tribunals’ power to make wider recommendations

Unite is opposed to Clause 2 of the Bill which would remove the power of Employment Tribunals to issue wider recommendations to employers found to have unlawfully discriminated and agrees with the TUC’s position on this.

The Government argues that it wants to remove this provision because of employer fears about inappropriate or excessive recommendations, but provides no proper evidence to substantiate this.

According to a recent study in the Equality Opportunities Review, in 2012 there were just 19 cases where Tribunals issued wider recommendations. In 15 of those cases the recommendation was for training on equality and diversity and in seven cases respondents were asked to address equality issues generally or to review policies.

Employment Tribunal recommendations are made by a Tribunal judge and two lay members, including one representing business, following a full hearing considering all evidence. This enables recommendations and suggestions to address serious cases of discrimination to be considered as appropriate.

Indeed, such recommendations are well regarded and often promoted as good practice by business, government and other organisations. In the absence of such recommendations, many bad employers will fail to deal with the causes of discrimination.

The TUC’s submission to the pre-legislative scrutiny committee pointed out three major flaws in the Government’s Impact Assessment (IA) of August 2012.

1. The IA fails to adequately capture the broader benefits to the workplace and employment practices of employers implementing recommendations.

2. The equality impact of repealing this provision has not been properly considered.

3. The IA is out of date. There are now significantly more cases (at least 28 according to Equality Opportunities Review) which should be included in any credible and improved impact assessment.

Clauses 61-64: Exercise of regulatory functions and economic growth

These clauses impose a new duty on bodies that perform particular regulatory functions to have regard in the exercise of those functions to the desirability of promoting economic growth.

Unite is concerned that this is not only potentially damaging in a number of ways, but that it may also compromise the independence of certain regulatory bodies such as the Health and Safety Executive (HSE) and the Equalities and Human Rights Commission (EHRC), which are required under EU legislation to operate at arm’s length from government in respect of some of their statutory functions.

The wording in these clauses – what is meant by economic growth, for example - is far from clear and likely to lead to confusion.

Whilst it is important to support economic growth, it is also important not to impede regulators’ ability to perform their statutory duties. Providing a statutory duty obliging regulators to have regard to economic growth, with considerable uncertainty about how this might work, presents such a risk.

Nor is there any clarity concerning the enforcement of fulfilling the new duty or assessing whether it conflicts with an existing duty. There is also a risk that parties subject to regulation will attempt to use the new duty as a ‘get out clause’. For example, an employer may argue that following a particular procedure that makes for a healthier and safer working environment impedes their ability to make a profit and contribute to economic growth.

Unite opposes these clauses. No evidence is given to support their introduction, they are poorly worded and risk damaging the health, safety and welfare of workers and citizens.

March 2014