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Proposed HSWA Self Employed Exemption Amended

In Summer 2014 the HSE sought views on their proposal to exempt certain self-employed persons from Section 3(2) of the Health & Safety at Work etc.…

Between 7 July and 31 August 2014 the HSE sought views on their proposal to exempt certain self-employed persons from Section 3(2) of the Health & Safety at Work etc. Act 1974 (HSWA). 

The proposal arose from the government-commissioned 2011 Löfstedt Report 'Reclaiming health and safety for all', which recommended that self-employed persons be exempt from health and safety law where they pose no potential risk of harm to others through their work activity.

At present,section 3(2) of HSWA, places general duties on everyone 'at work' including the self-employed. It states that: 

'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'. 

Section 53 of HSWA gives a broad definition of a self-employed person. It states that a 'self-employed person means an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others'.

The proposed change to section 3(2) HSWA, which is due to be implemented in the Deregulation Act 2015, will mean that the self-employed will be exempt unless they are carrying out 'an undertaking of a prescribed description', in which case the undertaking must be carried out ‘so far as is reasonably practicable’ that the self-employed person and others (who are not his employees) are not exposed to risks to their health and safety.

Last month when discussing the proposed amendment, the House of Lords have considered implementing a new Section 3(2)A, which would mean that when considering whether the self-employed should be on the prescribed list, a decision would also have to be made about whether others, including any employees, would ‘thereby’ be exposed to health and safety risks.

The wording adopted by the House of Lords in a debate on the proposed change is:

“A description of undertaking included in regulations under subsection (2) may be framed by reference to:

(a)   The type of activities carried out by the undertaking, where those activities are carried out or any other feature of the undertaking;

(b)   Whether persons who may be affected by the conduct of the undertaking, other than the self-employed person (or his employees), may thereby be exposed to risks to their health and safety.”

This may mean that the proposed list of areas where self-employed are automatically covered by HSWA will increase beyond those originally envisaged.  However, this proposed change has come under universal criticism on the basis that if the section is implemented, it would remain unclear whether or not the self-employed from certain industries were covered or not. 

In response, Lord Wallace of Saltaire said that the amendment would:

1. address concerns that the original proposal to amend HSWA would lead to some self-employed who pose a risk to health and safety being exempt; and

2. enable the government to make regulations which retained s.3(2) duties on all self-employed person who conduct specified high hazard work activities, as well as those who may expose others to risks of their health and safety.

It is also understood that once the amended section is finalised (after the general election), the HSE is to produce guidance to address the above issues, and to supplement existing guidance which explains in practical terms what ‘self-employed persons need to do to comply with the relevant law… and to limit the possibility of incorrectly assessing whether their work activities may expose other persons to risks to their health and safety’.

While this section is not yet in force, it is important that those who are self-employed keep abreast of the changes that are to be made. We will be producing a second update once the section has been finalised, with confirmation of the implementation due date.