Just as the Government appears to be coming to a new agreement with the EU over the Northern Ireland protocol, focus is now shifting onto the so-called “bonfire of EU laws” that the Government is proposing by the end of this year.
And, in particular, what effect this will have on Health and Safety Law, as much of our current regulations are based on EU law, and there is simply no time to enact new laws to cover the current very detailed provisions provided by Europe.
Employers, however, should not think that Health and Safety Law will simply cease to exist by the end of this year. Many experts predict that, in the absence of any new regulations, that current EU law will move to the status of guidance when considering the application of our own Health and Safety at Work Act, HSWA,1974.
Certainly, the Health and Safety Executive (HSE) have already indicated that there will be no difference in their approach, and they will rely on the current rules and regulations to continue to guide them in the future while expecting employers to do the same.
It might be helpful to list those areas of legislation that will be affected. Because if the Bill is adopted, then most regulations around Health and Safety will cease to be law on 31st December 2023. This is because they are derived from EU law.
Included in this are some very crucial parts of current regulations:
- Management of Health and Safety at Work Regulations 1999 (including the legal duty to undertake ‘Risk Assessments’ and the appointment of a ‘Competent Person’ requirements)
- Workplace (Health, Safety and Welfare) Regulations 1992
- Manual Handling Operations Regulations 1992
- Health and Safety (Display Screen Equipment) Regulations 1992
- Provision and Use of Work Equipment Regulations 1998
- Personal Protective Equipment at Work Regulations 1992, amended 2022
- Not forgetting some more specialist regulations such as:
- The Construction (Design and Management) Regulations 2015 (CDM)
- The Work at Height Regulations 2005
- The Control of Substances Hazardous to Health Regulations 2002
- And for things like Asbestos handling and disposal
And, in case you were wondering whether this will undermine the HSE, their duties, as well as all of the principles of our current health and safety management requirements, are already set out in the HSW Act. And, employers will continue to be responsible for the health, safety and wellbeing (the more modern term for welfare) of employees and others affected by their operations, both acts and omissions.
Such a situation is clearly a double-edged approach. In the short term, there will be uncertainty over what the precise new requirements are.
And, there is some talk that the Lords will slow the progress of this Bill down, or the Government may decide to continue with some regulations until as late as 2026, giving much more time to adapt.
In the medium term, there will be uncertainty over how the Courts will interpret health and safety law going forwards, and in the long term, there will be the opportunity for the UK to develop its own health and safety regulations, almost certainly modelled on what we have already.
The UK already has a strong and robust health and safety record, certainly one that compares very favourably to our continental counterparts, and globally our health and safety legal standards are acknowledged to be one of the best in the world.
Like most things around Brexit, no one quite knows how everything will play out over the coming years, but one thing is certain. Organisations and employers will continue to be required to meet their legal obligations under health and safety. And, they should not change their approach any time soon.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.