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 Lofstedts 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 activity.
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 regulation
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 anticipated.
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 Lofstedts 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 legislation itself.
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.