05/07/2016
The impact of a Brexit (remember, it has not actually happened yet), will result in profound changes for many areas of UK law. With regards to the construction, engineering and manufacturing industry, one of the areas they will be keeping a close eye on is health and safety.
Will the current law change? If so, how much? Employers need clarity to allow them to strategise and budget for the future, as well continue to protect their most valuable assets – their people.
The History of Health and Safety Legislation in Britain
The first piece of health and safety legislation passed was the Health and Morals of Apprentices Act 1802. This act was designed to provide some protection for "pauper apprentices" and fixed a maximum twelve hour working day for the children.
The Health and Morals of Apprentices Act 1802 also stated:
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mills must have sufficient windows to ensure a flow of fresh air
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the walls and floor of the mill must be washed regularly
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separate bedrooms must be provided for the two sexes
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there must be no more than two children to a bed
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two suits of clothing must be provided for each child, one to be new each year
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for at least the first four years of their apprenticeship, children must be instructed in reading, writing and arithmetic
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on Sundays, there must be at least an hour's teaching of Christianity, conducted by the local Anglican minister
The fact that legislation had to be used to give children, some as young as six, provides an illustration as to the shocking conditions workers were exposed to as the Industrial Revolution began to take hold.
Unfortunately for the children, no inspectors were ever appointed to monitor the conditions of factories.
Fast-forward 172 years, the Health and Safety at Work etc Act 1974 (The Act) was past, one year after Britain joined the EU’s predecessor, the European Community. During the period between the Health and Morals of Apprentices Act 1802 and the passing of the Act, the rise of trade unions and public concern about accidents - such as the 1913 Senghenydd mining disaster in Wales, which killed 440 men and boys - forced the Government to enact more regulations. However, despite improvements in some industries, tens of thousands were killed and injured at work annually well into the twentieth century. The situation remained much the same until 1974, when the Act was passed.
Health and Safety at Work etc Act 1974
The Act completely reformed health and safety law in the UK. The Health and Safety Executive was established and charged with inspecting workplaces, enforcing the law, provide advice and conduct research to improve safety and health.
To make the legislation more responsive to individual situations and changing technology, specific details such as the sizes of guards on machinery were replaced with a general duty on employers to reduce risks as ‘far as reasonably practical’.
The Act covered most workers, including the self-employed, which comprised a major number of construction workers by the 1970s. Self-regulation was also encouraged, a departure from what was seen by some as the increasingly intrusive role of the state in the area up until that point.
Did the revolution work? Undoubtedly. Research shows that the number of workplace injuries and deaths have decreased by a whopping 75% since the introduction of the Act. Employers have clearly taken on the challenge of regulating themselves and providing safer workplaces, saving thousands of lives in the process.
To what Extent have EU Directives affected UK Health and Safety Law?
Forty-one out of the 65 new health and safety regulations introduced between 1997 and 2009 originated in the EU. However, there has been a considerable reduction in pace as the European Commission has adopted a more anti-regulatory approach – in part due to pressure from successive UK governments. Some directives have been highly unpopular in Britain, especially the loathed Working Time Directive imposed in 1993.
The biggest change to health and safety law came with the implementation of the European Framework Directive on Safety and Health at Work (Directive 89/391 EEC) adopted in 1989 by the UK.
The innovations brought in by this Directive included:
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The term ‘working environment’ was set in accordance with International Labour Organization (ILO) Convention No. 155 and defines a modern approach taking into account technical safety as well as general prevention of ill-health.
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An aim to establish an equal level of safety and health for the benefit of all workers (the only exceptions are domestic workers and certain public and military services).
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An obligation on employers to take appropriate preventive measures to make work safer and healthier.
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An introduction of the principle of risk assessment and definitions of its main elements (e.g. hazard identification, worker participation, introduction of adequate measures with the priority of eliminating risk at source, documentation and periodical re-assessment of workplace hazards).
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An obligation to put in place prevention measures stressing the importance of new forms of safety and health management as part of general management processes.
How much will health and safety legislation change if Brexit occurs?
When asked, the HSE stated, “The UK Government is considering its response to the referendum vote. In the meantime there are no immediate consequences for how HSE works and regulates.”
An independent legal opinion commissioned by a leading employment QC concluded earlier this year that health and safety protections was present on a list of rights most at risk from a government with a deregulatory agenda if the UK elects to leave the EU.
However, given the slowdown on the number of EU Directives being issued, the fact that a majority of our health and safety law was developed independent of any EU directives and much of the existing legislation is reasonably self-regulatory, there is a good chance nothing will change, or if it does, not in a hurry.
As with all aspects of the Leave decision, we will have to wait and see. We will endeavour to keep you posted.
Please view our series of Brexit blogs below:
How Could a Brexit Affect the Construction Industry?
Procurement and Brexit – What are the Implications?
The Post-Referendum Future for the Construction, Engineering and Manufacturing Industry.
Fisher Scoggins Waters are a London based law firm who are experts in environmental, construction, manufacturing and engineering matters. If you need legal advice regarding health and safety law, please phone us on 0207 993 6960.