Proposals to exempt from health and safety law
those self-employed whose work activities pose no
potential risk of harm to others (CD242)
Response by the Unite the Union
This response is submitted by Unite the Union. Unite is the UK and Ireland’s largest
trade union with 1.5 million members working in the private and public sectors. The
union's members work in a wide range of industries including agriculture, forestry,
horticulture, docks, construction, manufacturing, food manufacturing, distribution and
retail, financial services, road, rail, air and sea transport, print, media, not for profit
sectors (including youth and community workers), local government, private
contractors providing public services, education and the health service.
The consultation process
First of all we wish to raise concerns about the conduct of this consultation which we
have raised separately with the HSE.
The questions posed in the consultation document only seek comments on Option 2
(the option preferred by the HSE) and does not ask specifically for views on the other
options including Unite’s preferred option of not making any changes to the
legislation.
Unite believes that this does not comply with current cabinet office guidelines on
consultations particularly in relation to the stated principles of making information
useful and accessible, and of transparency.
The guidelines include the following advice:
"...The objectives of any consultation should be clear.."
".. Information provided to stakeholders should be easy to comprehend... and clarify
the key issues"
"...Being clear about the areas of policy on which views are sought..."
"... Departments should be clear how they have come to a decision to consult in a
particular way."
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Omitting questions about the other options nullifies the purpose of the consultation.
This effectively renders it valueless as a tool for collecting stakeholders' views and
raises the prospect of a possible legal challenge and accordingly we are requesting
the immediate withdrawal of this consultation paper.
Summary of Unite’s concerns about the proposal
Unite is strongly opposed to and strongly condemns the removal any health and
safety protection and in particular we are opposed to exempting any self-employed
workers from health and safety law.
There is no safety reason for the proposal, nor any economic justification that we are
aware of: in other words, there is no rationale whatsoever to this proposal (which is
simply dictated by ideology and a consistently misplaced, dangerous and wilfully
ignorant approach to employee health and safety - and apparently general public
safety by the Coalition Government).
Taking this step will increase confusion for the self-employed and duty-holders about
whether they are covered or not. This is extremely hazardous for both workers and
society generally. We predict that if this proposal is adopted there will be an
increase in injuries, deaths and occupational illness.
Health and Safety at Work etc Act (HSWA) provides essential protection for
members of the public from the effect of the work activities of others, not just
employees. So, for example in the passenger transport sector, both passengers
and employees are covered by the HSWA. Taxi drivers are generally self-employed
workers.
The current provisions HSWA also provide essential protection for other workers
who may work with the self-employed. Though the working relationship and
contractual position of the self-employed can be different from employees, their
work activities may pose a risk to employees they are working alongside, or to the
public. This sensible approach to health and safety protection must be maintained.
Unite is also concerned that if this exemption is made then other wider issues will be
overlooked. For example many self-employed people work in situations where they
have no control over their working environment and so require the same protection
as workers. This can include self-employed workers in major sectors such as
finance or IT where the self-employed contractors sit alongside other workers doing
the same job.
In addition many employees have been designated as self-employed who are not
self-employed at all with employers trying to get round employment law or to avoid
paying tax or National Insurance – widespread bogus self employment in the
construction industry being an example.
Many self-employed people are employers in their own right.
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The proposal for exemption is limited to self-employed people who do not employ
people and whose work activities pose no potential risk or harm to others. This
demonstrates that no change is needed. If a work activity poses no risk to anyone
else then there are no circumstances whereby a self-employed person could be
prosecuted under the HSWA, unless they harmed themselves.
If another person is injured then it becomes a matter of fact that this activity had the
potential to cause harm to others.
This means that the only intended effect of this change would be to stop people
being prosecuted for harming themselves.
Some self-employed activities can be very harmful (such as farming and some craft
work), and it is essential that these workers continue to get support and advice from
the HSE on how to protect themselves.
If they do injure themselves then this is really a matter for the HSE or LA prosecution
policy rather than a change in regulations.
Unite believes that it is unlikely to be in the public interest to prosecute a sole selfemployed worker who poses no risk to others who injures themselves – and indeed,
we are not aware of any such a prosecution.
Unite is also very alarmed by the very dangerous messages which will be sent by
changing the law.
Although those who “direct” self-employed people will still have legal duties,
contractors and others will attempt to avoid responsibility by making more people self
employed because they believe that they will be exempt from health and safety
legislation. In other words an increase in bogus self employment will result which will
also have economic consequences.
Confusion will arise with regard to which self-employed people will be exempt and
which will not.
Any exemption will send the wrong message to self employed people: that they
have no responsibility to take any precautions to protect their own safety or health.
As a result any change is likely to have a significant effect on the injury levels of both
self-employed (real and bogus) as well as those who work with them or the public.
Self-employment is more common in many of the most hazardous industries,
including construction and agriculture. Much of that self-employment is bogus.
Self-employed people are more than twice as likely to be killed than employees.
There is a fatality rate of 1.2 per 100,000 for the self-employed as against 0.5 per
100,000 for employees.
We believe that all of the first three options are unworkable in legal terms – a legal
nightmare.
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Unite is also very concerned that the HSE and local authorities will not be able to
give guidance and support to this group if they are removed from the Health and
Safety at Work Act.
Unite questions the whole basis of the proposal. The impact assessment clearly
confirms that there is absolutely no evidence base for exempting the self employed
from health and safety legislation.
Unite will comment on the various options suggested for completeness but we
are firmly of the view that doing nothing is the safest, most sensible – and
most cost effective - way to proceed for everyone.
Option 1 – Exempting from health and safety law, the self-employed who pose
no potential risk of harm to others
Adopting this would be extremely dangerous and confusing. It relies on a selfemployed person having the knowledge and awareness of the risks and to be able to
quantify whether there is a risk to others. This is completely impractical.
It will lead to self-employed people believing that they have no duties under the
Health and Safety at Work Act. Then when something goes wrong they will face
prosecution.
What does “no potential risk of harm” mean? Adopting this option will create a legal
minefield as courts seek to interpret what “no potential risk of harm” means. No
activity has absolutely no potential risk of harm.
Option 2 – Exempting from health and safety law, the self-employed who pose
no potential risk of harm to others and who do not work in a high risk sector
as prescribed by the Secretary of State
This option is even more dangerous. Adopting it will lead to the belief that any selfemployed person not in a prescribed sector is effectively exempt from the Health and
Safety at Work Act.
Any attempt to quantify risk by sector is bound to fail. Unite suggests that a number
of industries not included pose just as great, if not greater, risks to the public than
those on the list and where there are a large number of self-employed. This includes
a wide range of leisure and outdoor activities, film-making, many parts of the
entertainment industry and transport.
The problem will not be solved by including them on the list, as there is no rationale
for having a list in the first place. It cannot be predicted where problems may arise
or develop in the future; and arguments would arise over whether an activity falls
within a sector or not (for example in legal proceedings).
The most dangerous consequence of adopting this option would be the confusion
caused in the sectors not included on the list who may believe they have a complete
exemption and act accordingly.
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Option 3 - Exempting from health and safety law, the self-employed who
undertake office-type activities and pose no potential risk of harm to others
The rationale for this appears to be that “office-type” activities are “safe” which is
untrue.
How would “office-type” be defined? Self employed office workers working from
home for example writers. We should not forget that not only do many workers carry
out office type work at home but also self-employed home workers often do
hazardous work, in particular artists and craft workers, whose use of chemicals can
also pose a hazard to others.
If the CD is referring to self-employed people who work in a general office then their
environment is usually controlled by another duty-holder who would still have
responsibilities under the HSWA. An adverse consequence of adopting this option is
likely to be that the contracts of these workers would start to include responsibility for
their own health and safety. This situation is of course untenable.
Option 4 – Do Nothing
For the strong reasons outlined above Unite urges that the law should not be
changed and that it is in the public interest to maintain the current duties on
the self-employed.
There are no unnecessary legal or administrative burdens and current legal
requirements are clear and simple.
If any of the other options is adopted, each self-employed person will have to make
assessments about their activities – and they are unlikely to have the right skills or
competence to do this.
The other three options will lead to confusion and also will mean that many
employers will misunderstand the changes. The inevitable result will be that deaths,
injuries and illnesses among the self-employed, and those caused by the selfemployed, will rise. This is completely unacceptable at any level.
Self-employed people who do not employ other people are already exempted from
the requirement to do a written risk assessment, and Unite would not wish any selfemployed person to be prosecuted because of an injury they have done to
themselves where no other person was at risk. This does not require a change in the
law – the rather simpler step of clarifying the HSE and LA prosecution policy is all
that is needed.
Answers to specific questions raised in the document
Q7. Do you agree that Option 2 provides the best way to exempt the selfemployed from health and safety legislation without creating risks to other
people?
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No. Please see our comments on Option 2.
Q8a. Do you have comments on the following proposed list of prescribed
industries/activities/sites which are identified for Option 2?
Unite believes that this approach is wrong and dangerous and completely
unworkable. Please see our comments under Option 2.
Q8b. Would you suggest any changes to this list?
Unite believes that there is no rational reason or safety reason to have such a list
and we urge the HSE to abandon this idea.
Q9. Assuming that you have knowledge of groups of self-employed persons
who would be exempted, do you think an exemption from health and safety
law would cause them to change their behaviour?
Yes: a negative change in behaviour. Unite believes that the change will have the
dangerous consequence that some self-employed people will be less likely to seek
information on advice on safety or health issues because they would believe they are
not required to do so. It is disappointing that the impact assessment when raising
this issue sees this as being a positive rather than a negative effect.
Unite believes that self-employed people will be less likely to take steps to ensure
they do not harm themselves or others.
Q10a. Do you have any comments on the initial Impact Assessment at
Appendix A of the costs and benefits of the change?
The attempts by the HSE to calculate the economic costs and benefits are untenable
being based on vague assumptions and admissions that there is no evidence.
None of the options show any economic case for the changes.
HSE has not attempted to assess the cost of the health and safety effects, merely
saying that there is not enough evidence. Double standards are being applied here
and this is neither acceptable nor rational. There is no more evidence to justify
making the estimates of the costs and cost savings than there is of the safety effects.
They would undoubtedly have led to an even more negative impact assessment
Q10b. Are there other factors that need to be taken into account?
Yes. We believe there are significant factors including the effect on the behaviour of
those not to be exempted who may think they are; the high cost of communicating
the changes and the legal costs while, inevitably, the new regulations are subject to
legal challenges.
Q11. Do you agree with the assumptions that have been made in the Impact
Assessment, including those on familiarisation?
We believe that they are too general to be of any real use.
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Q12. Are there any additional potential negative impacts that the Impact
Assessment does not take into account?
See Q10b
Q13. Are there any additional potential positive impacts that the Impact
Assessment does not take into account?
No
Q14. Do you agree with the Equality Impact Assessment at Appendix B of the
consultative document?
Unite strongly disagrees with the statement that vulnerable groups will not be
disproportionately affected.
Large numbers of migrant workers are employed on a self-employed basis and this
group are disproportionately denied direct employment by employers.
They are unlikely to be able to understand the significance of the changes and are
likely to be further exploited as a result of the proposals.
This is totally unacceptable.
Q15. Would the exemption of self-employed persons who pose no potential
risk of harm to others have any other implications (positive or negative) that
have not been considered?
Unite believes that considerable work will need to be done to communicate the legal
position, in particular to counter the problem of people misunderstanding or misapplying the changes.
Is there anything you particularly liked or disliked about this consultation?
Please comment if you wish
We believe the HSE is in breach of the code of practice for consultation. Please see
the opening paragraphs of our response.
Unite contacts
Susan Murray susan.murray@unitetheunion.org
Bud Hudspith
bud.huspith@unitetheunion.org
October 2012
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