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Health and Safety Law

Compliance - guidance - training

26 SEP 2016

Brexit: where next for Health and Safety?

Brexit: where next for Health and Safety?

On 23 June 2016 the UK voted to leave the European Union (EU). Clearly the implications of this vote go far and wide, not least to occupational health and safety. So what does the future now look like for health and safety?

There is no doubt that the UK’s membership of the EU has had a significant influence on domestic health and safety legislation. Approximately two-thirds of the health and safety regulations introduced in the UK over the last 25 years have an EU origin. Trades unions have pointed to the significant reduction in worker fatalities year on year over that same period, arguing that at least some of this reduction is due to the influence of the EU, even if other factors such as changes in the nature of industry are also relevant. Trades unions have also noted that the levelling off in the downward trend of fatalities over the last five to six years has occurred simultaneously with the EU moving towards a more deregulatory approach, with far less regulation emanating from Brussels in recent years.

To understand the possible implications of Brexit for health and safety legislation, it is necessary to consider how the EU exerts its influence:

  • Directly applicable legislation: some EU Treaty provisions and EU regulations apply directly to Member States, for example the REACH regulation that places duties on businesses to identify and manage the risks associated with chemicals that they manufacture and market in the EU. No additional domestic legislation is needed to implement such legislation; it applies directly. When the UK leaves the EU, it seems likely that this legislation will no longer apply. This in turn suggests that in due course there will need to be a review of the position to identify what needs to be retained and how this can be achieved.

  • EU Directives: the main route through which the EU has influenced domestic health and safety legislation has been through the passing of directives. Rather than applying directly, EU Member States are obliged to implement directives by passing their own domestic legislation, and in general such legislation could continue to have effect post-Brexit. It is as yet unclear precisely how the various pieces of implementing legislation will be affected by Brexit, and it appears that the effects may vary according to which legislation (European, domestic, or both) the implementing regulations were made under.

Impact on UK legislation

As regards occupational health and safety, the most significant of the EU directives is the 1989 Framework Directive on Safety and Health at Work (89/391/EEC), which was implemented in the UK essentially via the so-called ‘six-pack’ of regulations:

  • the Management of Health and Safety at Work Regulations;

  • the Display Screen Equipment Regulations;

  • the Manual Handling Operations Regulations;

  • the Personal Protective Equipment at Work Regulations;

  • the Work Equipment Regulations; and

  • the Workplace (Health, Safety and Welfare) Regulations.

In addition to the Framework Directive, there are other directives of relevance, covering both particular groups of people and particular workplace hazards such as work at height, noise, asbestos, chemicals, construction, young workers, temporary workers and new or expectant mothers. All of these directives have been implemented through domestic legislation, and at this stage it is not possible to know what the government’s intentions might be with regard to such legislation. A number of government reviews of health and safety and the HSE have taken place over the last decade, and to varying extents they considered the impact of EU legislation; such reviews include those undertaken by Lord Neil Davidson QC, Professor Ragnar Löfstedt and Martin Temple. Broadly, their findings did not indicate that EU legislation was being ‘gold-plated’ by the UK’s implementing legislation.

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Nevertheless, there is reason to believe that some of the UK’s implementing legislation may not survive Brexit. The Trades Union Congress has made the observation that the scope of the recommendations made by the reviews referred to above has been limited by the need for the UK to comply with minimum standards originating from Europe. Post-Brexit this limitation will not exist, giving the government more scope to make changes. Further, a 2014 Department of Work and Pensions report Appraisal of HSE’s approach to negotiating and implementing European legislation set out a list of EU legislation that the government ‘would like to see simplified or repealed’. This list gives a good indication of the changes that the government might seek to make, and includes the following:

  • Flexibility for Member States to determine written risk assessment requirements for small, low-risk business.

  • Repeal of the Artificial Optical Radiation Directive.

  • Repeal of the requirement in the Display Screen Equipment Directive for employers to meet the costs of eye and eyesight tests for certain workers.

  • Excluding private householders from the duties on construction project clients in the Temporary or Mobile Construction Sites Directive, as implemented by the Construction (Design and Management) Regulations 2015.

  • Adapting the Safety Signs Directive so that signs are required only where there are significant hazards.

  • Modifying the Chemical Agents Directive to provide Member States with the flexibility to determine in what circumstances duty holders should provide information on their emergency arrangements for hazardous chemicals to external accident and emergency services.

  • Removing the duplication between the Health and Safety Framework Directive and its ‘daughter’ directives on risk assessment, consultation and participation of employees, information, training and instruction of employees, health surveillance and protective and preventative services requirements.

Other regulations of EU origin that many commentators believe may be removed from the statute book include the Working Time Regulations 1998 and the Agency Worker Regulations 2010.

Concluding remarks

The process for leaving the EU will begin in earnest when the UK invokes Article 50 of the Lisbon Treaty, following which the UK will have two years to negotiate its withdrawal (though this time period can be extended with the agreement of the other EU Member States). Article 50 has not yet been invoked. Prime Minister Theresa May has stated that this will not happen before the end of 2016.

Thus it is as yet unclear how long the Brexit process will take and how it will work. It may take far longer than two years. Relevant to this is the sort of relationship the UK will be seeking to establish with the EU post-Brexit, with the Norway and Switzerland situations offering possible models. This issue, and the nature of the trade deal that results, will significantly influence the scope that the UK has for removing and amending the current occupational health and safety legislation.

Another key factor is of course the colour of government that is in place at the relevant time, and its appetite for deregulation and simplification of health and safety legislation. Concerns have been raised that the government must be careful to ensure that standards are preserved and working people continue to be afforded the proper levels of protection. In any event the process of disentangling the UK from EU law will be a complex and lengthy task, and it may well be that the government of the day decides to maintain a good deal of such law because to do so would be in the national interest.

Despite all the uncertainties that currently exist, some things are reasonably clear. Although upon leaving the EU the government will have more control over the UK’s health and safety law, we can be fairly confident that we will not be seeing a return to sending children up chimneys. The Health and Safety at Work etc Act 1974, the cornerstone of UK health and safety legislation, is not EU-related and thus will not be affected by Brexit; similarly the Corporate Manslaughter and Corporate Homicide Act 2007. Rather, it is to be hoped that the UK’s well-respected health and safety framework, exemplified by the Health and Safety at Work etc Act, will itself continue to exert influence on the EU’s approach to health and safety, thereby ensuring that the EU’s approach remains proportionate and fit for purpose.