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Proposal to Exempt Self Employed from H&SAW Act
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I note that today the HSE has prepared a consultative document on exempting the self employed from their responsibilities to the public under S. 3.2 of the Act unless they are in a specified industry.
What do other forum members think the potential consequences of such a move would be?
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Rank: Super forum user 
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There will be a lot of very confused self employed people, and those not confused will just be ignorant of the changes.
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Time to change profession and become a personal injury lawyer skilled in common law negligence claims. Loads of work.
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These regulations look pointless: The current law requires that the self-employed carry out certain duties if their work affects other people. What they are expected to do is commensurate with what work they do, so if some works with on construction site they would be expected to do more than someone who writes children’s stories for a living.
The new law will state that only those workers who work in ‘high risk industries’ will need to comply with section 3 of the Health and Safety at Work Act 1974 so people working in construction will still have to carry out their duties as before and someone writing children’s books won’t need to do anything (as oppose to not doing much).
Overall the new legislation is a load of window dressing, which allows the government to claim that it is reducing the “burden” on the self-employed but in reality it won’t make any difference.
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Rank: Super forum user
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The link is here: http://www.hse.gov.uk/consult/live.htmI'm still trying to get my head round the fact that under the Act it will become okay to kill members of the public unless you are in a specified trade. Also, it doesn't seem very future proof should I decide to set up as a one man band manufacturing genetically modified organisms producing nano-materials or whatever the next MacGuffin will be. Isn't that one of the problems pre 1974 that the Act was designed to eliminate?
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Yoss
I would like to see this 'prescribed list'. How can you possibly comment without seeing who is on it? Is it the postman, plumber, tinker, tailor...?
Personally I think the HSE should man up and tell the Government that this is a farcical idea which is all too likely to blow up in their faces when there is a fatality(s) in a supposed low risk undertaking.
Ray
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Ray, the list is the schedule to the Regs. It is also discussed at some length in the Impact assessment section.
I think I have understood it correctly when I say it is based mostly on the activity undertaken not a list of specific trades or professions. If you don't do ANY of the specified activities and are self employed then you be will exempt?
If you check over that list in the schedule it doesn't obviously leave many who will be exempt. Lots of noise to change nothing except the level of confusion!!
And best of all, in their evidence they say that when questioned most self employed quoted 'common sense' as the reason they did OSH in the way that the current laws etc require, very few, if any, said it was because of regulation!
And so they are going to change the law anyway, ----help where's the off button.
p48
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Rank: Guest
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Purrrfect when will they bring in the carousel from Logans Run for the over 65 s.
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Rank: Super forum user
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Sorry BJC it was 30 not 65. So if you remember the film the first time around.....
Chris
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I see the prescribed list in para 12, listing which activities WILL still need H&S controls, includes: Quote:
- where there is a European obligation to retain the general duty on self-employed persons
So any contractor using work equipment (PUWER), lifting equipment (LOLER) or working at height (WAHR) ? Without suitable precautions such activities could be high risk, so for those contractors: Quote:(para 13.) Self-employed persons undertaking any of the high hazard activities in the prescribed list will be expected to take the necessary safeguards when undertaking those activities to prevent risk of harm to themselves and others So for my customers and their contractors nothing will change - but I think I might have to check that they understand this! John
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nobody knows just how risky an occupation is unless we risk assess so if occupations do not have to risk assess nor comply with H&S law in other ways we will not know how risky they are!!
example: A one man band artist on first view is not a risky occupation however only this week a one man bad artist that I know of whilst making a small ring allowed a child (13) to try to polish the ring using a free standing disc sander and yep the child ended up in hospital!!!! The gov is playing games
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Wasn't this originally a recommendation from the Löfstedt review, so it should come as no surprise....
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Animax01 wrote:Wasn't this originally a recommendation from the Löfstedt review, so it should come as no surprise....
I'm a Safety Practitioner, rank stupidity never surprises me. Persistence in idiocy from those who should know better and are responsible for the commonweal however does become wearing. It's the circular reasoning that's doing my head in this morning. Exempting the self employed who pose no potential harm... Well if they pose no potential harm, then they will not be in breach so it follows the legislation does not need to be changed. If someone is harmed through an action or omission of the self employed then how can it be said they posed no potential risk of harm to others? The changes will have been shown to be a pointless stupid farce.
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Yossarian wrote:It's the circular reasoning that's doing my head in this morning. Exempting the self employed who pose no potential harm... Well if they pose no potential harm, then they will not be in breach so it follows the legislation does not need to be changed. Catch 22.
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Exactly.
Give me a medal and send me home.
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Another bout of spin and nonesense.
I agree with Ray its time the "so called experts" within the HSE actually stood up to the government rather than rolling over all the time!
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Rank: Super forum user
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“I agree with Ray its time the "so called experts" within the HSE actually stood up to the government rather than rolling over all the time!”
Yes but he who pays the piper calls the tune- the HSE have told the government what’s what and they have just ignored them and told them “it’s our way or the highway”.
Note that in recent years any announcements about the future of the HSE have not come from the HSE themselves but from the Department of Work and Pensions. Sounds like someone is being reined in.
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A Kurdziel wrote:
Note that in recent years any announcements about the future of the HSE have not come from the HSE themselves but from the Department of Work and Pensions. Sounds like someone is being reined in.
It's not just H&S - pretty much everything this government does is on the basis of what looks good in the press - witness eg the Somerset Levels flooding - there was a defined, agreed maintenance policy and long-term plan, which includes allowing agricultural land to flood, but as soon as the press start crawling over it politicians are announcing fundamental reversals of policy without any discussion at all with anyone that actually understands the behaviour of the drainage catchment. The press calls for dredging some particular stretch of a river, of course we'll guarantee to dredge it, never mind that it makes flooding worse downstream, never mind that it increases the flood risk to higher numbers of residential properties. It seems career politicians are now more expert than anyone that's actually studied or managed river drainage. In that case, not only did we get career politicians ignoring advice, we actually got them explicitly saying the at the experts were wrong: Pickles said "I am really sorry that we took the advice … we thought we were dealing with experts." If you actually had a difficult problem about large-scale river drainage, who would you turn to, a hydrologist who's worked in the field all their career, or Eric Pickles? Eric Pickles thinks it should be him. It it looks good in the Daily Mail, this government will do it, and our current opposition will say they would have done it if they could.
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Expect more of this posturing until 7 May 2015, when the next General Election is to be held.
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Rank: Super forum user
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Please guys..
When was the last time you noticed a self-employed-one-man-band giving a hoot about H&S?
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JohnMurray wrote:Please guys..
When was the last time you noticed a self-employed-one-man-band giving a hoot about H&S? Technically, I'm a one-man-band employed by a Ltd wholly owned by me and my wife. I give a hoot.
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Rank: Super forum user
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JohnMurray wrote:Please guys..
When was the last time you noticed a self-employed-one-man-band giving a hoot about H&S? OY, I'm a self-employed-one-man-band and I do give a hoot about H&S
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Rank: Super forum user
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achrn, you beat me to it by 6 seconds!
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Your also probably listed on the Prescribed Undertakings list at No. 32 Quote:Provision of advice by a competent person... It's the example listed at #12 by Bob Youell that I worry about.
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So instead of 5 lines of legislation in HSWA S3(2) we end up with 5.5 pages of activities where S3(2) would still apply.
Massive enforcement and fear of enforcement, hardly.
Advance search on HSE prosecutions database by "Breaches" finds 67 convictions under S3(2) against ~50 defendants (more than half as regards gas safety).
Prosecutions arising from fatal accidents involving overturning vehicle 16 Dec 2011 and reversing vehicle 12 March 2012 in sectors that in the future are proposed to be exempt.
I though work related transport was a key focus of HSE's activity?
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Rank: Super forum user
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Yossarian wrote:Animax01 wrote:Wasn't this originally a recommendation from the Löfstedt review, so it should come as no surprise....
I'm a Safety Practitioner, rank stupidity never surprises me. Persistence in idiocy from those who should know better and are responsible for the commonweal however does become wearing. It's the circular reasoning that's doing my head in this morning. Exempting the self employed who pose no potential harm... Well if they pose no potential harm, then they will not be in breach so it follows the legislation does not need to be changed. If someone is harmed through an action or omission of the self employed then how can it be said they posed no potential risk of harm to others? The changes will have been shown to be a pointless stupid farce. Quite true, if the task/job is safe, then a risk assessment would have told you that. If it wasn't, you will have recorded that and taken steps to make it so. Thus removing the need for 5.5 pages of exemptions. Will this not breed complacency too? Any day, another ludicrous idea.
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Rank: Super forum user
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Some further questions I have that I think we may need to unpack...
If my organisation contracts out to a self employed contractor, given that they may not have any S 3(2) duties under the new regime, where would criminal liability attach in the event of an accident or occupational illness?
Is this significantly different from the current situation?
Would my organisation then be able to mitigate against this by refusing to employ the self employed as contractors?
Would such a response by other organisations not have a greater detrimental effect on the self employed than compliance with the current law?
Any thoughts or views on these from others are more than welcome.
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Rank: Super forum user 
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I often don't agree with John (#21) or perhaps his approach, but I wonder if he does have a point. Is this proposed change likely to have a significant impact in practice?
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Rank: Super forum user
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John Murrays experience of one man bands is almost exactly opposite to mine. I meet many every year and almost without exception they care an awful lot more about their OSH than the average supervisor or middle manager in larger businesses!
The real issue for most one man bands is not that they don't care but that they don't always know what they are doing wrong or how to do it better. That is mirrored in the data put forward as part of the impact assessment.
Significant impact? Yep but only to add confusion to what doesn't really need changing in this way. Just have a look at that schedule and see how many self employed people you can identify who will actually be exempt; you wont need many fingers in my view.
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Yossarian
Of course, you can always cover yourself by insisting in your contact with the self-employed contractor that:
a) they will comply with any relevant health and safety legislation
b) they have adequate personal liability insurance (One of my clients regularly asks for a copy of our liability insurance document before asking me to provide training/risk assessment, etc
c) that they accept liability for any consequences arising out of their not complying with the relevant health and safety legislation
d) that they agree to comply with any relevant requirements with regard to safe working practice that you, as the contractor, may deem necessary.
Chris
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Rank: Forum user
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I see legislation being a means of guiding you towards and end goal and to be used as a means of 'punishment' to those who don't care - either through ignorance or attitude - who have caused some one harm or possible harm.
A self employed tatooist when not following good infection control procedures can transmit various infections. If 3(2) is removed what recourse is there to stop them doing it again (litigation aside)?
There are quite a few of similar circumstances. In Scotland they have direct payments for people who require care assistance at home. With direct payments they can employ just about anyone - who may be self-employed. This person with no/little training e.g. manual handling etc can seriously cause harm and if they do, what can they be prosecuted under?
I have loads of examples which don't come into the 'list'
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Tattoo parlours and tattoists are licensed under the Local Government (Misc Provisions) Act which contains basic duties with regard to matters such as cleanliness etc. It is an offence to fail those duties.
Self employed Health Care workers will not be exempted.
Quote (b) social care includes any services provided to any person in care homes or in premises where assessment, treatment or care is provided in the community (including in domestic premises).
The more I delve into this mess the more pointless it all seems.
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Does it include fire eaters in public open spaces???!!!!:-)
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is the gove going to exempt them from tax, NI and other such things even though they are more complicated etc. than H&S?! I do not think so
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Rank: Forum user
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This idea like many coming out of the Government is based on a popular notion that H&S is a massive work load on the self employed.
I think as an industry we have not helped this, when I see and hear about things that our "consultants" have made self employed workers do it makes me cringe.
On the other hand, I must admit I have not yet read the consultation document but I wonder how such an exemption will it be abused, for instance will we go back to the SC 60 days when everybody on a construction site was "self employed" and nothing applied to them?
We still have this problem in the construction industry where companies are really only labour agencies, and the workers are providing all their own PPE for example.
next task to read the consultation and see if it ahs considered this point.
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boblewis wrote:Does it include fire eaters in public open spaces???!!!!:-) Only if it comes unde DSEAR, Bob. Another issue that has popped into my head today is how is this likely to affect work experience taster placements if the person you are trying to place a year 10 student with has no duties under 3(2) of the Act? Just glad I no longer work in that particular field.
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www.hse.gov.uk/lau/5-year-data-sheet.xlsWell aware that not all local authorities are diligent about telling HSE about their H&S enforcement activity but...... 5 years' data 2008-13 Total 1250 convictions recorded. A massive 8 under Section 3(2) of HSWA. 1. Launderette proprietor + 3 charges under asbestos regs - would not be exempt 2. Asbestos surveyor - ditto - see last para on draft Schedule 3. Farm visitor attraction - would need to check some definitions - so much for reducing the burden of red tape 4. Boss of wildlife park (Park also prosecuted) - would not be exempt - branch of tree fell on toddler's head 5. Proprietor of corner shop - probably exempt unless 3(2) charge associated with e.g. asbestos 6. Proprietor of dog grooming parlour - ditto 7. Boss of cafe (Cafe also prosecuted) - 16 year old employee severely scalded in hot oil - would be exempt 8. Unlicensed tattoist who tattooed children and used needles and inks that were not sterilised - not exempt - Schedule para 9
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Proposal to Exempt Self Employed from H&SAW Act
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