the Lofstedt report - the key elements
30 November 2011
In March 2011, Professor Lofstedt was asked to look into the
scope for reducing the burden of health and safety regulation on
business. Lofstedt sought views from a wide variety of
organisations and his report was published three days ago.
Whilst concluding that there was no case for radically altering
health and safety legislation, he did make a number of important
recommendations which propose changes to existing health and safety
laws and review of regulation and guidance.
The key elements of the report can best be split into two parts.
Firstly, those where Lofstedt’s recommendations propose change to
legislation and secondly, those where the HSE and others are being
invited to examine and review existing guidance.
Proposals to Change Legislation
1. Exemption of self employed from health and safety law
The report proposes a change in the law to exempt from health
and safety law those self employed people whose work activities
pose no potential risk or harm to others. The report refers to self
employed persons as “those who do not have any employees”. Further
guidance will be required as to what amounts to activities that
pose no potential risk of harm to others.
Currently, health and safety legislation is enforced in some
premises by the Health and Safety Executive (HSE) and in others by
local authorities. The report identified inconsistencies in
implementation and an artificial barrier to efficient targeting of
enforcement activity. In the circumstances, the report recommends
that legislation is changed to give the HSE the authority to direct
all local authority health and safety inspection enforcement
3. Revocation or amendment of regulations
The report recommends that specific regulations be revoked
entirely e.g. The Notification of Tower Cranes Regulations 2010. It
also recommends that some regulations should be amended or
clarified including the Construction Design and Management
Regulations 2007, the Reporting of Injuries Diseases and Dangerous
Occurrences Regulations 1995 and the Work at Height Regulations
2005. The report invites the HSE to complete an evaluation of the
CDM Regulations by April 2012 and in the case of the RIDDOR
Regulations and Work at Height Regulations by April 2013.
Examination and review of existing guidance and
1. Consolidation of regulation
The report identified over 200 regulations and indicated that
consolidation of some of the regulations was required. The HSE is
to undertake a programme of sector specific consolidations to be
completed by April 2015.
2. Review of Approved Codes of Practice
The report highlighted the need to ensure the regulations
addressed real risks not trivial ones. It identified a need to
clarify what the regulations require and felt that improved
guidance would assist. The report recommends that the HSE should
review all its Approved Codes of Practice and that the initial
phase of a review should be completed by June 2012 so businesses
are certain about what is planned and when changes can be
It is recommended that all those involved in enforcement work
should ensure that any prosecutions are commenced within three
years of an incident occurring.
Professor Lofstedt’s review is founded on the basis that
regulation should be risk based rather than hazard based, i.e. it
should focus on the likelihood of something happening rather than
focusing on the potentially negative outcomes that might arise from
activities undertaken in the workplace.
The report does not propose wholesale change of legislation.
Indeed its introduction observes that in general any burden of
regulation perceived by employers is often the result of the way in
which the law is interpreted and applied rather than with the
However, important changes are being proposed and employers will
need to keep a keen eye on those parts of the recommendations that
might have an impact upon their day to day activities. In
particular, any changes to the Work at Height Regulations 2005 and
Construction Design and Management Regulations 2007 would be likely
to have consequences for a wide variety of businesses as will any
of the proposed changes relating to the self employed. The report
recognises the need for further clear guidance from HSE so that the
limits and scope of the changes are clear.
Browne Jacobson’s health and safety team, headed by partner Andy
Hopkin, will be keeping a close eye on developments over the next
few months and will provide further updates as events unfold. If
you have any immediate questions, please contact us.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.