From 1 October 2015 new regulations will exempt self-employed persons whose work activity poses no potential risk to the health and safety of other workers or members of the public from having to comply with Section 3 of the Health and Safety at Work etc Act 1974 (“HSWA”).
Section 3, HSWA requires self-employed persons to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not employed by the self-employed person are not exposed to risks to their health and safety by the self-employed person’s work activity. Regulation 2 of the Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015 (“the Regulations”) provides that section 3, HSWA only applies if there is a potential risk to the health and safety of others.
This change follows the main recommendation of the 2011 Löfstedt Review that self-employed workers whose work activities pose no potential risk of harm to others should be exempt from health and safety law. The Regulations follow a policy objective of reducing or improving regulation and cutting "red tape" burdens on businesses.
Under the Regulations a worker will not be subject to section 3, HSWA where:
- The worker is self-employed; and
- The worker’s activities are not listed in the Schedule to the Regulations and do not pose a potential risk to the health and safety of others (other than the self-employed person carrying out those activities or their employees).
For health and safety law purposes, a person is self-employed if they work for gain or reward other than under a contract of employment, whether or not he himself employs others. This is not the same as the classification of self-employment for tax purposes.
Risk to the Health and Safety of Others
This is the likelihood of someone else (eg members of the public, clients, contractors etc) being harmed or injured as a consequence of the self-employed persons work activity. The Health and Safety Executive considers that most self-employed people will know if their work poses a risk to the health and safety of others.
Certain activities remain subject to section 3, HSWA regardless of circumstances. Those activities are working with asbestos or on a construction site, operating a railway or performing agricultural activities or activities subject to certain provisions of the Gas Safety (Installation and Use) Regulations 1998 or the Genetically Modified Organisms (Contained Use) Regulations 2014.
The Health and Safety Executive (“HSE”) estimates that the Regulations will exempt 1.7 million workers from section 3, HSWA and gives examples of self-employed novelists, journalists, graphic designers, accountants, confectioners, financial advisors and online traders.
Whilst these basic examples seem clear cut, the practical application of the Regulations may cause concern for some self-employed people. It is up to the self-employed person to judge whether their work activity is a potential risk to the health and safety of others, but this won’t be tested until something has gone wrong. A self-employed person may conclude that their work poses no risk to the health and safety of others (and therefore that they are exempt from section 3, HSWA). However, if an accident subsequently happens, the HSE may reach the opposite conclusion and pursue the person for breach of section 3, HSWA. The self-employed person would then either have to admit guilt and risk paying a fine (and possibly imprisonment), or defend its case, with the time and expense that entails.
The self-employed are likely to welcome the concept of deregulation and some may even benefit from reduced public liability insurance premiums, but individual cases may still cause unexpected results.