Self-employment: significant changes in the law
Section 3(2) of the Health and Safety at Work, etc., Act 1974 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.
This apparently clear and simple provision has, in reality, given rise to a number of definitional issues.
Section 53 of the 1974 Act defines “self-employed person” as an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others.
“Contract of employment” is defined as a contract of employment or apprenticeship whether express or implied, and if express, whether oral or in writing.
There is also a substantial mass of case law in relation to the terms used in section 3. One example is that the boundaries between employment and self-employment are far from clear.
In relation to the meaning of “undertaking”, the leading case is R v Mara (1987) where a cleaner was electrocuted when using a faulty electric scrubbing machine on a Saturday, when the employees at the place being cleaned were not on the premises The court ruled that the conduct of an undertaking is not confined to the hours when the company’s employees are actually there. For example, a company may shut down over a weekend for cleaners to come in. The company would not be excused from liability to the cleaners because its own employees were not there. It is not permissible to treat section 3 as being applicable only when an undertaking is in the process of being actively carried on.
In 2011, the Lofstedt Review[1] recommended that those self-employed whose work activities pose no potential risk of harm to others should be exempt from health and safety law. This recommendation was accepted by the government which enacted the Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015. The general effect of these Regulations is that, from 1 October 2015, if you are self-employed and your work activity poses no potential risk to the health and safety of other workers or members of the public, then health and safety law will not apply to you.
It is estimated that health and safety law will no longer apply to 1.7 million self-employed people like novelists, journalists, graphic designers, accountants, confectioners, financial advisors and online traders.
High risk activities
The law says that there are certain work activities where the law applies because they are high risk. If your work involves any of these activities, then the law will apply to you:
Agriculture
Asbestos
Construction
Gas
Genetically modified organisms
Railways.
An activity which is not listed above is still covered by section 3 of the 1974 Act where it may pose a risk to the health and safety of another person. This would appear to defeat the entire purpose of the changes.
The new Regulations also provide for a review by the Secretary of State within five years from the date on which they came into force. The review must be set out in a report which must:
Set out the objectives intended to be achieved by the new Regulations
Assess the extent to which those objectives are achieved
Assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system which imposes less regulation.
The TUC made the following points in relation to the proposed new Regulations before they were enacted:
The proposals would create confusion and uncertainty in a sector which already has a much higher fatality, injury and health rate.
IOSH had stated that this was a very shorty-sighted and misleading move which would not actually help anyone. It would not support business but would cause general confusion.
The proposed changes were completely unnecessary because the only time in which the 1974 Act could be used was in circumstances where a person did put another person at risk. If a self-employed person injures another person through their work, regardless of what they might have believed beforehand, the Act of 1974 would apply.
There was no need to change the duty of a self-employed not to injure themselves. No self-employed person has ever been prosecuted for risking their own health. The HSE has been able to give the self-employed guidance on how to protect their own safety. Self-employed people, for example scaffolders and window-cleaners, have been prosecuted where they have risked the health and safety of others. The new Regulations will not affect this position.
All self-employed people will continue to be under an obligation to carry out risk assessments to determine whether or not their work poses a risk to others. If there is no risk, there is no problem. Again, the new Regulations do not affect this position.
The new Regulations will bring confusion and complacency. The self-employed are likely to be unsure if they are covered, particularly if they are not on the list of occupations in the Regulations, set out above.
Many self-employed people who clearly do pose a risk will assume that they have nothing to worry about because they are not in occupations on the list and will believe that there is no need for any safety precautions.
Those who control workplaces where self-employed people work, who may in fact be bogus self-employed, will wrongly assume that they do not have a duty of care to these workers. Self-employed people who employ others may interpret the new Regulations as meaning that they are exempt from the law.
The listed occupations are, generally, the most dangerous. They all have a high proportion of the self-employed, and anything which confuses the legal position is objectionable.
The new Regulations are supposedly being introduced for the reduction of burdens resulting from legislation. The reality, in the view of the TUC, is that the effect is likely to be the opposite because it does not change the law for those who pose genuine risks and creates confusion for all othere self-employed persons.
Reported statistics show a fatality rate of 1.2 per 100,000 for the self-employed and 0.5 per 100,000 for employees.
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