Proposed health and safety reform to reduce 'strict liability' burdens on businesses

Out-Law News | 30 Nov 2011 | 2:36 pm | 2 min. read

Self-employed people "whose work activities pose no potential risk of harm to others" should be excluded from the scope of health and safety law, according to a new report.

The report (110-page / 781KB PDF), by risk management specialist Professor Ragnar Löfstedt of King's College London, also recommends doing away with 'strict liability' offences, where employees are awarded compensation "despite employers doing everything that is reasonably practicable and foreseeable" to prevent an accident happening.

In its response (19-page / 108KB PDF), the Government said it would begin an immediate consultation on abolishing "large numbers" of health and safety rules. It plans to remove the first rules from the statute book "within a few months".

A new "challenge panel" will be established on 1 January 2012 which will allow businesses to overturn the wrong decisions of health and safety inspectors immediately. The report also recommends overhauling existing approved codes of practice (ACoPs) from the Health and Safety Executive (HSE), as well as strengthening the HSE's role in relation to local authorities.

The Government said that the approximately 200 existing health and safety regulations would be halved over the next three years.

Health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind, said that the report's broad theme was that health and safety law should be based on proportionate risk management.

"The duties found in the myriad of existing Regulations can undermine the sensible and proportionate risk management approach advocated by the HSE and Chartered Institution of Occupational Safety and Health (IOSH), as employers will be found criminally responsible even if they have done everything reasonable to manage what is a foreseeable risk," he said.

He added that as employers could also be sued for compensation by injured parties as well as prosecuted for breaching their general health and safety duty under the criminal law, many were driven "not by principles of good risk management but by the fear of being sued".

The Health and Safety at Work Act, which governs health and safety law in the UK, is underpinned by the principle of 'reasonable practicability', and gives the HSE discretion in choosing whether to prosecute an employer. However, the strict liability in damages introduced by some of the regulations meant that employers were unable to distinguish between their duties under the Act and this liability.

"As long as an employer can be liable in damages, the fundamental objective of achieving a proportionate and balanced approach to managing occupational health and safety will be thwarted," Bridges said.

"Separating criminal from civil liability and ensuring that an employer's duties are always based on the taking of sensible and reasonable precautions is where the HSE and the Government should concentrate its efforts," he said.

The Government said that these regulations would be reviewed by June 2013 and either qualified with 'reasonably practicable' or removed from the scope of civil law altogether.

Löfstedt said that including self-employed people within the health and safety regime "goes beyond EU requirements", as most countries only applied legislation to those engaged in activities that were particularly hazardous or carried a risk of injury to others.

Over a million self-employed people would benefit from relaxing the rules, he said.

However, the report recognised that the extent to which health and safety regulation could be changed was "severely limited" by EU requirements, which accounted for 94% of the cost of UK health and safety regulations introduced between 1998 and 2009 and almost two thirds of new regulations.

The Government said that it would encourage the European Commission to adopt a "risk-based and evidence-based" approach in its planned review of EU health and safety legislation in 2013.

Minister for Employment Chris Grayling said Löfstedt's recommendations "put common sense back at the heart of health and safety".

"Our reforms will root out needless bureaucracy and be a significant boost to the million self-employed people who will be moved out of health and safety regulation altogether," he said.