The HSE have launched a consultation on the proposal that those who are self employed and engaged in work activities that pose no potential risk of harm to others should be exempt from Health and Safety law.

This measure was first suggested by Professor Lofstedt’s report “Reclaiming health and safety for all: An independent review of health and safety legislation”.

As matters stand the Health and Safety at Work etc Act 1974 places duties on everyone who is at work.  In particular there is an obligation on the self employed in the following terms:

“It shall be the duty of every self employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety.”

A number of the obligations created in the regulations flowing from the 1974 Act also apply to the self employed and cumulatively they do tend to place as heavy an onus on the self employed as the large organisation employing hundreds of employees.

It is important to understand from the outset that the exemption will not apply to those whose activities create a potential risk of harm to others or to those who have employees.

The consultation document focuses on the options for identifying who may be exempt so as to ensure the greatest clarity.  The options can be briefly outlined as follows:

Option 1 – the exemption would apply to those who are self employed, do not employ anyone and when carrying out their business they do not pose any risk of potential harm to others.

Option 2 – the exemption would apply to those who are self employed, do not employ anyone, when carrying on their business they do not pose any risk of potential harm to others and they do not work in a prescribed sector.  The list of prescribed sectors (or those who will not be exempt) is likely to include agriculture, construction, quarries, mining, diving, COMAH sites, offshore activities, nuclear installations, explosives and gas fitting and installation.

Option 3 – the exemption would apply to those who are self employed, do not employ others, their work consists solely of office type activities and when carrying out their business they do not pose any risk of potential harm to others.

Option 4 – do nothing.

In the first three options the very first thing that a self employed person with no employees must do is to satisfy themselves that their business activities do not pose any risk of potential harm to others.  For the most part this will be relatively straight forward and certainly option 2 would remove any doubt for those working in the prescribed sectors.  Those working in low risk areas will then be able to carry on with their business without having to carry out risk assessments of their activities and it is hoped that this change will result in a significant reduction in administrative burden for those entitled to the exemption.

The consultation document can be found here and responses are invited up to 28 October 2012.