The EEF Report is clear on industry's Brexit demands: no change in the immediate future. What's more, EEF agree that the Government’s current approach of grandfathering existing EU worker protection and product safety legislative requirements into UK law for the foreseeable future is the right one. In this sense the EEF Report echoes our previous LawNow on what is on the horizon for health and safety regulation post-Brexit.
The UK has always been a trailblazer in health and safety worker protection and the UK have an international reputation for reducing work-related injuries and have one of the best health and safety records in Europe. The UK has always applied a risk based health and safety system (including laws derived from EU Directives) because it has been found to be successful and fit for purpose by several independent reviews. It is respected and imitated across the world.
In supporting the status quo the EEF Report stresses the importance of a seamless transition in product safety legislation as industry are fervently against applying different standards to sell their products in different countries. To this end industry are pressing for the British Standards Institution and Government to align itself with EU standards and the International Organization for Standardization so that products can continue to be sold around the world without having to conform to differing technical standards.
One area of review for change that the EEF Report advocates is for a more flexible approach to regulation, mooting the idea of basing risk assessments on worker capability rather than a person's worker category. At the moment there are risk assessments for expectant mothers and young workers, but depending on the circumstances there may be no difference between the risks for them and anyone else. Capability transcends categories of workers and the EEF Report is keen for risk assessments to follow suit.
Despite standing up for the status quo to be maintained, industry appear to be supportive of a thorough review of legislation in the post EU-exit world. The EEF Report suggests that both the Control of Electromagnetic Fields at Work Regulations 2016 and the Control of Artificial Optical Radiation at Work Regulations 2010 could be early candidates for review post-Brexit. Time is now ticking towards 29 March 2019 and whilst there will not be a noticeable shift overnight there are signs that a period of change is on the horizon for the health and safety landscape.
Fee For Intervention
FFI became part of the Health and Safety Executive ("HSE") machinery on 1 October 2012 and is a way for the regulator to recover its costs where a business has breached health and safety regulation. However, the EEF Report raises queries over its efficiencies. From an income generating point of view the FFI has run at a loss every year from its inception owing to the administrative costs outweighing revenue, with the HSE absorbing this loss. An alternative for the regulator to generate an income is posed. In 2015 55% of respondents said they would pay for health and safety advice from the HSE as an alternative means of costs recovery. This may defeat some of the difficulties with the FFI whilst at the same time having the ability to create a more cost efficient income generator.
Personal protection equipment ("PPE")
The EEF Report directs criticism at the current monitoring of PPE on the market. Currently, manufacturers of PPE that protect users from minimal risks can self-certify that the equipment meets EU safety requirements. The problem is that the sole purpose of PPE is to protect the user from harm. By allowing self-certification and not the certification of a third party notified body who are appointed by the Commission it is widely thought that there could be discrepancies in assessment methodology, which may undermine the PPE's reliability and ultimately the safety of the worker.
The question is raised by the EEF Report as to why some PPE equipment is not centrally assessed in the same way as other equipment such as electrical, pressure equipment and toys which require third party certification. After 21 April 2019 a new mid-tier category of PPE will be created and manufacturers will need to obtain third party certification for this, but the position will remain the same for "minimal risk" PPE which can still be manufacturer certified.
The EEF Report appears to suggest that the increased fines under the new sentencing guidelines are not currently changing company behaviours in relation to improving health and safety in the workplace. In support of their view they reference 42% of respondents taking no action since the higher fines were implemented. However, we believe that on the statistics as presented a large proportion of companies have reviewed their health and safety policies as a result of the increased fines. Further, if the “no action takers” are excluded from the data set 63% of company directors are now taking a greater interest in health and safety risk management. This is a positive and could be read to mean that the court’s message about the importance of worker safety is taking effect. Further, the proportion that have not taken action may be those whose safety systems already reflect the nature of the regime, and after all, the sentencing guidelines did not alter the laws, simply the repercussions when they were breached.
We agree with EEF and Arco when they say that the task of extricating the UK from EU regulation and legislation will be long and complex. The Government need to ensure regulatory stability and avoid short term overnight changes to the way business, labour and product markets are regulated. Before the referendum, EEF had said that in the event of Brexit the UK should retain most if not all of the main legislative instruments in the area of health and safety law. This remains their position. They also support the EU Commission’s health and safety legislative review (part of the EU’s Regulatory Fitness and Performance Programme (REFIT)) on whether regulations could be removed, or consolidated and whether the existing EU health and safety acquis is still fit for purpose. The EEF Report clearly advocates the view that there is considerable opportunity to create a much more simplified health and safety goal setting and future proof legal framework. Such a framework could consolidate existing requirements, remove duplication, make it easier for SMEs to meet their legal obligations and as a consequence enable more workers to be protected.
The EEF Report makes clear that Brexit and trade are big concerns of manufacturers at the moment. With this in mind it may be of some comfort that all the signs at the moment do appear to suggest that the health and safety regulatory landscape is not shifting overnight and where changes are taking shape transitionary measures are being built in to allow industry time to adjust.
The authors wish to acknowledge the assistance of Douglas Scott (Trainee, CMS Sheffield) in preparing this article.