Brexit Impact on Health and Safety Regulation

United Kingdom

With less than six months to go until Brexit, employers and workers will be nervous about what lies ahead for the health and safety landscape come 23:00 on 29 March 2019. In short: nothing will change…straight away.

The first reason why we can expect little change straight away is owing to the Government’s stance. The Chequers deal, in relation to health and safety, proposes only that “Existing workers’ rights enjoyed under EU law will continue to be available in UK law on the day of withdrawal.” Whilst this appears as vague as we have come to expect from the past 18 months of negotiations, it provides clarity in its silence. If the Government were to overhaul the health and safety framework it is likely it would have stated this in the Chequers deal and provided an alternative solution. Further, the White Paper boasts of the UK’s health and safety record being one of the strongest in Europe. The lack of political appetite to overhaul this self-proclaimed award winning formula is palpable.

It is also sensible to believe the health and safety status quo will prevail owing to the protagonist – the Health and Safety at Work etc. Act 1974 (“HSWA”) – being of British and not European descent. Brexit will come and go but the HSWA will remain and continue to require employers to ensure “so far as is reasonably practicable” the health, safety and welfare at work of employees and others. The goal-setting approach of the HSWA looks set to remain for the foreseeable future and nothing in the European Union (Withdrawal) Act 2018 (“EUWA”) states anything to the contrary.

The Health and Safety (Amendment) (EU Exit) Regulations 2018 (draft) (the "Draft Regulations") demonstrate another clear sign of the Government's intention to maintain the current health and safety regime post-Brexit. The explanatory memorandum that accompanies the Draft Regulations could not be clearer: "[The Draft Regulations] maintain the protections afforded by health and safety legislation and do not impose any new liabilities or obligations on relevant persons".

The Draft Regulations, whilst thorough, are tautological in nature. For example, the Draft Regulations amend the Health and Safety (Safety Signs and Signals) Regulations 1996 to require that they comply with the Workplace (Health, Safety and Welfare) Regulations 1992 rather than EU Directive 89/654/EEC. The practical effect of this change is zero because both European and UK legislation demand the same requirement – to ensure that workplaces have sufficient natural light. Whilst it is worth noting that obligations on public authorities change marginally, the pattern of zero-effect changes on private actors is pervasive throughout the Draft Regulations.

As the explanatory memorandum makes clear, the Draft Regulations, in their current form, will not change the practical obligations or liabilities for businesses.

It is also worth noting that the Health and Safety Executive (the “HSE”) appear to be toeing the Government party line with its support of Brexit and how it will continue “ensuring that health and safety regulation continues to provide a high level of protection in the workplace.” It follows that if the legislative framework does not change then the approach of the HSE will not change either and will operate in the same way post-Brexit as it has done previously.

However, whilst not a lot will change for the HSE in the short-term, there is an upcoming vacancy for a health and safety regulation creator and the HSE’s CV is looking like a promising candidate. With Brussels no longer setting standards, the HSE may take a front row seat in advising the Government on health and safety regulation and deregulation.

The short-term preservation of the status quo for health and safety will provide a glimmer of continuity in what will be uncertain times for businesses. However, businesses must remain vigilant because whilst Brexit might not bring immediate change, it may be the catalyst for a slackening in health and safety law.

The first reason why Brexit could cause this slackening in health and safety regulation is because many of the UK’s regulations relating to workers’ protection emanate from the EU. The so called “six pack regulations”, which supplement HSWA duties, originated on the EU legislative floor before being transposed into UK law. Part of the reason why the EU were the instigators of the regulations is that there is a duty on the EU to continually improve the health and safety of workers. Once the UK departs from the EU it will no longer be legally compelled to comply with this duty and instead health and safety will just become another electorate bargaining chip. The danger is that, if the political desire is not ripe, the UK will be left behind the duty-bound EU in the health and safety arena. Only the passage of time will confirm where we end up.

The courts may also play a role in the let up of health and safety regulation. Currently the courts are under a duty to interpret EU derived national law in accordance with the wording and purpose of EU law. This has been important in the past in interpreting health and safety regulations. For example the Supreme Court in Kennedy v Cordia (Services) LLP [2016] UKSC 6 overturned the lower court’s decision not to award compensation to an injured worker, basing its judgment on the duty to interpret the regulations in line with EU law. In six months time section 6(1)(a) EUWA will take effect and the UK courts will no longer be bound by a duty to interpret EU derived UK law in line with EU law. Had EUWA been in force at the time Kennedy was decided it may have led to a different outcome.

Yet any potential change on the health and safety horizon must be caveated with the very real chance that the UK Government and the courts may continue to follow developments on the continent and implement the laws in largely the same way as it has done for the past 45 years. For example with or without Brexit the HSE and ultimately the UK courts can still look to EU states and further afield to influence any decision they make as to what is reasonably practicable for a UK company to achieve in health and safety standards.

Practical effect

The short-term practical effect of Brexit in terms of health and safety is nothing. The morning after Brexit businesses should continue to achieve the outcome-based goal of requiring employers and businesses to do everything "reasonably practicable" to protect people from harm.

Looking further into the future the phrase “only time will tell” appears to have had more air time in the past 18 months than at any other time in history but with the UK’s relationship with the EU still unclear no one can predict with certainty how Brexit will effect health and safety in the UK in the long-term.

The author wishes to acknowledge the assistance of Douglas Scott (Trainee, CMS Sheffield) in preparing this article.