No duties and no risk for the self employed?

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This article will appear in a forthcoming edition of the Daily Echo Hampshire Business Supplement.

New legislation introduced by the government means that from 1 October, 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.

The new legislation goes by the catchy title “The Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015”.

The law specifies certain work activities where health and safety laws will still apply because they are high risk.  These activities are Agriculture (including forestry); Asbestos; Construction; Gas; Genetically modified organisms and Railways. In this way if you are self employed working in these specific industries then you will still need to comply with health and safety rules. In addition if you are self employed and your work activity poses a risk to the health and safety of others, then health and safety laws will still apply to you even if you do not work in the areas specifically listed.

The Health and Safety Executive estimates that health and safety laws will no longer apply to 1.7 million self employed people like journalists, accountants, financial advisors, online traders, graphic designers and novelists as a result of this new legislation.

The objective of this legislation is welcomed by many in that there has been a sense that business has suffered under the weight of red tape for some years and health and safety laws have often been seen to be at the forefront of this red tape.  In response the government introduced its Red Tape Challenge and only this year David Cameron  said in a speech to The Federation of Small Businesses that this is the first government in modern history to reduce overall domestic regulation for business while in office. 800 regulations were said to have already been abolished or simplified – with tens of thousands of pages of red tape still to face the chop.

However, although the objective is laudable a note of caution must also be sounded. If you are self employed then for several reasons you should still be very cautious about assuming that you no longer need to comply with health and safety laws.

You must be careful about deciding that your work poses no risk to anyone.  It is arguably somewhat circular of the government to say that you still need to comply with heath and safety laws if your work activity poses a risk to the health and safety of others.  The HSE guidance on this is to the effect that most self employed people will know if their work poses a risk to the health and safety of others and that you must consider the work you are doing and judge for yourself if it creates or risk or not.  The concern here is that you may truly believe that your work poses no risk to anyone else right up to the point when someone is injured. In those circumstances you could face criticism for not having complied with health and safety laws.

You must also be careful about assuming you are self employed when you may not be.  The HSE guidance on this is that for health and safety law purposes, “self employed” means that you do not work under a contract of employment and work only for yourself.  However, those involved in litigation on a daily basis will know that the question of a person’s employment status is often a major issue in disputes.

Overall the important thing is to decide carefully how to react to this new legislation and if appropriate take professional advice on the issues it raises for you and your business.

This article was written by Kelvin Farmaner who is Co Vice Chair of the Hampshire Chamber of Commerce Tax, Finance and Legal Committee. Kelvin is a Partner with Trethowans LLP and Head of the Dispute Resolution Group and Insurance Litigation Team.