Self employed exemption: HSE launches consultation on draft regulations

HSE’s consultation on the draft, released yesterday, outlines a list of reserved activities that will not be subject to the general exemption of self employed people from section 3(2) of the Health and Safety at Work Act, a proposal currently making its way through the House of Lords.

The 22 categories, unchanged since Safety Management published the list in March, are to be enshrined in law in 2015 subject to parliamentary approval.

The prescribed activities and sectors, which are listed in the schedule of what will become the Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations, include construction, agriculture, work with dangerous substances, asbestos and pressure systems.

HSE are asking respondents to the consultation for their opinion on the clarity of the definitions of activities and whether self employed people will be able to understand whether or not they are exempt. Some definitions point to those made in other regulations. For the purpose of the proposed regulations the definition of construction work will be that given in CDM 2007. Work with asbestos will prescribed "within the meaning given in regulation 2(2) of the Control of Asbestos Regulations 2012”.

Following a recommendation in Lofstedt’s 2011 report Reclaiming health and safety for all to exempt some self employed people from health and safety law where they pose no risk of harm to others, HSE has drawn up the prescribed activities based upon four principles. Activities will be prescribed if they:

• have high rates of injuries and/or fatalities, such as agriculture
• carry a significant risk to members of the public, for example fairground attractions
• have the potential for mass fatalities, such as explosives
• are covered by a European Union obligation to retain the general duty on self-employed persons, for example at temporary or mobile construction sites.

Launching the consultation HSE’s Sarah Wadham said: “We are keen to hear from self-employed people who carry out these prescribed activities. Health and safety law will still apply to them and we need to ensure that legal definitions are clear and easy for them to understand.

“We also want to provide clear health and safety guidance to all self-employed workers in an accessible way. Feedback from this consultation will be invaluable in helping us do this.

“Anybody wishing to have a say on the proposals should visit the HSE website today.”

Hugh Robertson, the TUC’s senior policy officer, writing on the Stronger Unions blog, said the changes were a recipe for confusion as the definitions of prescribed activities were insufficiently clear.

“On carcinogens, the proposed regulations do not say which chemicals are covered but refer you to COSHH. Go there and they refer you to another set of regulations, CHiP (which are being withdrawn in a few months anyway). I could find nothing on the HSE website that definitively lists what ones are covered. So if you are self-employed and working with diesel, are you covered by the Act or not?”

He continues: “The whole thing is a mess from beginning to end. It is a mess because it is based on a stupid concept that is only being pushed through because of the deregulatory mania of this government who are obsessed with trying to enact one of the few real deregulatory measures on health and safety that they are allowed to under European Law regardless of the human cost.”