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Legal Minds

18 July 2016 / by / in ,

Health and Safety after Brexit

There is growing debate among health and safety practitioners about the likely impact on health and safety following the British vote to leave the EU.

The Health and Safety at Work etc Act 1974 (HSWA) is the cornerstone of the health and safety regime in the UK. It was enacted following the Robens Report of 1972 (Lord Robens, Safety and Health at Work, Report of the Committee, 1970 -1972, Cmnd 5034, HMSO, London 1972) which was the first comprehensive review of health and safety law in the UK.  The HSWA sets out two fundamental duties upon employers: to ensure, so far as is reasonably practicable, the health and safety of employees (s2 of the Act) and non employees affected by an employer’s business, for example contractors or members of the public, (s3 of the Act).

The HSWA and the report which led to it predate the UK joining the EU. Therefore the foundation of our health and safety law will be unaffected by the vote to leave.

The HSWA is the enabling act under which health and safety regulations derived from EU directives are implemented into our domestic legislation. A few years ago there was a case brought before the European Court of Justice concerning whether the phrase ‘so far as is reasonably practicable’ used in the Act and a number of health and safety regulations, was compatible with European law. The Court found it was.

The Management of Health and Safety at Work Regulations 1999 (the successor to the 1992 Regulations of the same name) derives from the EU Framework Directive 89/391/EC, the core requirement of which is for employers to undertake risk assessments. Given that this is now a key tool used in managing health and safety risk and that the HSWA is goal setting rather than prescriptive, it is unlikely that HSE is going to wish to move away from this approach.

The Corporate Manslaughter and Corporate Homicide Act 2007 was a response to a number of unsuccessful high profile prosecutions of companies for corporate manslaughter under the common law, such as the prosecutions following the P&O ferry disaster and the Southall train crash. Therefore this is another piece of legislation unaffected by Brexit.

The reality is that, certainly in the short term at least, the government has more pressing matters than reviewing health and safety legislation following the vote. According to the BBC website, there could be as few as a dozen experienced trade negotiators in Whitehall capable of negotiating the many trade deals that will be needed. If correct, then this small band of civil servants will have their work cut out and will no doubt be grateful that the UK eventually decided to opt into the EU’s Working Time Directive. Implemented as the Working Time Regulations 1988, these set out employees’ maximum weekly working time, patterns of work and holidays, plus daily and weekly rest periods.

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