Proposal to exempt self-employed from section 3(2) of HSWA, except those undertaking activities on a prescribed list (CD273)

About this consultation

This consultative document (CD) sets out the principles of how the Government proposes that self-employed persons, except those undertaking activities on a prescribed list, will be exempted from section 3(2) of the Health and Safety at Work etc Act 1974 (HSWA).

The CD seeks views on:

  • the clarity of the definitions in the draft regulations (Annex 1)
  • the costs and benefits of the proposed changes as per Impact Assessment (Annex 2).

Background

The Deregulation Bill (that contains this exemption clause) was subject to scrutiny by a Pre-legislative Scrutiny Joint Committee, which suggested that confusion could arise as a result of the way the clause was drafted. In particular, it was suggested the clause was unclear for those self-employed persons who retained duties under section 3(2).

Proposed changes

As a result, the Government thought that a more specific prescribed list could better inform people as to whether or not they were now exempt. The clause has therefore been amended so that all self-employed persons will be exempt from the law unless they conduct an “undertaking of a prescribed description.” The CD explains that an undertaking will be prescribed if one of the following four criteria is met:

  • there are high numbers of self-employed in a particular industry and high rates of injuries and/or fatalities (e.g. agriculture);
  • there is a significant risk to members of the public (e.g. fairgrounds);
  • there is the potential for mass fatalities (e.g. explosives); or
  • there is a European obligation to retain the general duty on self-employed persons (e.g. construction - Council Directive 92/57/EEC imposes duties on the self-employed for safety and health requirements at temporary or mobile construction sites).

The draft regulations at Annex 1 detail those high hazard industries and activities which will not be exempt from section 3(2) of HSWA. It is intended that those activities undertaken by self-employed persons not on this prescribed list will be exempt.

Have your say 

Please send us your comments on the four HSE consultation questions presented below to consultation@iosh.co.uk by 8 August 2014.

Thank you.

Consultation questions

Q1. The Schedule to the Regulations at Annex 1, lists definitions for each of the work activities listed below. These are the prescribed activities for which the self-employed will continue to have health and safety duties. It is important the definitions are clear and accurate.

Please consider the definitions and let us know if you agree they are clear or not. If you disagree, please tell us why. Definitions may refer to other regulations (see Annex 3).

Agriculture and Forestry – Paragraphs 1 – 4 

Any agricultural activity (within the meaning given in regulation 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998).

Agree / Disagree 

Gamekeeping, which means the management of game and the environment to provide a habitat conducive for the production of game through activities including:

(a) vermin control;
(b) land, plant and water management; or
(c) the prevention of poaching.

Agree / Disagree 

Landscaping and other amenity activities, including the creation, maintenance and management of hard and soft landscapes in parks, gardens and similar environments for aesthetic and leisure purposes.

Agree / Disagree

Any arboricultural activity, including the cultivation and maintenance of trees, shrubs and other woody plants.

Agree / Disagree

Construction and design – Paragraphs 5 – 6

Agree / Disagree

Compressed air – Paragraph 7

Agree / Disagree

Diving – Paragraph 8

Agree / Disagree

Chemicals, explosives and other dangerous substances – Paragraphs 9(a) – 9(f) 

Here ‘work activity’ includes manufacturing, importing, exporting, supplying, managing, handling, storing, transporting, examining, testing and use.

Agree / Disagree 

Dangerous substance (within the meaning of the Dangerous Substances and Explosive Regulations 2005) - Paragraph 9(g)

Agree / Disagree

Biocidal product or treated article – Paragraph 9(h)

Agree / Disagree

Acetylene – Paragraph 9(i)

Agree / Disagree

Dangerous Substances in Harbour Areas – Paragraph 10

Agree / Disagree

Explosives – Paragraph 11

Agree / Disagree

Lead – Paragraph 12

Agree / Disagree

Manufacture of refining of chemicals and petrochemicals – Paragraph 13

Agree / Disagree

Carriage of Dangerous Goods and Use of Transportable Pressure Equipment – Paragraph 14 

Agree / Disagree

Control of Major Accident Hazard Regulations 1999 – Paragraph 15

Agree / Disagree

Asbestos – Paragraph 16

Agree / Disagree

Electricity – Paragraph 17

Agree / Disagree

Equipment and plant – Paragraph 18

Agree / Disagree

Pressure systems – Paragraph 19

Agree / Disagree

Mining and quarrying - Paragraphs 20 and 21

Agree / Disagree

Pipelines - Paragraph 22

Agree / Disagree

Railways and other guided transport - Paragraph 23

Agree / Disagree

Health and social care – Paragraph 24

Agree / Disagree

Waste management - Paragraph 25

Agree / Disagree

Amusement – Paragraph 26 

Here ‘hazardous thrill seeking activity’ includes activities such as bungee jumping and zip wires. ‘Hazardous production activity’ includes circus acts and stunts. ‘Event, exhibition or venue’ includes concerts and fairs.

Agree / Disagree

Gas – Paragraph 27

Agree / Disagree

Genetically modified organisms – Paragraph 28

Agree / Disagree

Nuclear and ionising radiation - Paragraphs 29 and 30

Agree / Disagree

Offshore - Paragraph 31

Agree / Disagree

Advice - Paragraph 32

Agree / Disagree

Q2. From the definitions for work activities in the Regulations, do you think someone who is self-employed would know if the law applied to them or not?

Yes / No
Please comment here

Q3. In the Impact Assessment in Annex 2 of the consultation document HSE has made a number of assumptions. Do you have comments about any of these?

Yes / No

Q4. Self-employed people will need to know if the law applies to them or not. How best do you think HSE can achieve this clarity (e.g. web based guidance etc)? 

IOSH members wishing to also respond directly to HSE should visit here and or send comments to selfemployed2014@hse.gsi.gov.uk by 31 August 2014.