Law Changes for the Self-Employed

There are over 4 million self-employed workers in the United Kingdom. Before 2015, millions of these workers had to comply with health and safety legislation, even if their work activities posed no risk to other people’s health and safety. So, if you were working from home on your laptop all day by yourself, you would have still had to comply.

There were significant legislation changes in 2015. A Deregulation Bill was introduced that sought to lessen the burden on businesses by freeing them from ‘red tape’ associated with cumbersome laws. One area focussed on in the Bill was the health and safety duties of self-employed workers. Professor Löfstedt recommended removing the health and safety burdens from the self-employed in low-risk occupations, whose activities represented no risk to other people. It was accepted, and the Bill was passed.

Due to the passing of the Bill and subsequent changes in the law, the Health and Safety Executive (HSE) estimates health and safety law no longer applies to 1.7 million self-employed people. The HSE uses examples of those who would now be exempt, as their work does not pose a risk to the health and safety of others, e.g. novelists, journalists, graphic designers, accountants, financial advisers and dressmakers.

This article will look at the changes in legislation in further detail and help you determine whether health and safety laws apply to your work activities.

Are you self-employed?

According to the HSE, “for health and safety law purposes, ‘self-employed’ means that you do not work under a contract of employment and work only for yourself”.

To determine whether you need to comply with health and safety law, you need to confirm that you are self-employed for health and safety purposes. You may be classed as self-employed when it comes to tax, but this doesn’t necessarily mean this is the case for health and safety.

If you are self-employed, you need to be aware of the laws that apply to you, including those relating to health and safety. If you need to comply and fail to do so, even if you were unsure of what you needed to do, you could face penalties. Ignorance of the law is not a defence.

What was the change in legislation?

The Löfstedt report was published after an independent review of health and safety legislation in 2011. It recommended that the self-employed be exempt from health and safety law where their work activities pose no potential risk of harm to other people. The recommendations of the review and the Deregulation Bill were opposed by many organisations, including IOSH and Trade Unions, over concerns regarding possible confusion and lessening of health and safety standards. Regardless, the recommendation was accepted by the UK Government and included in the Deregulation Bill.

The Deregulation Act 2015 was introduced from the Bill and came into force on 26^th March 2015. The Act made amendments to the Health and Safety at Work etc. Act 1974 section 3(2). The change involved limiting self-employed workers’ duties to those who carry out ‘an undertaking of a prescribed description’. These are roles in high-risk areas detailed in the Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015. These Regulations came into force on 1^st October 2015.

Before October 2015, every self-employed worker had to comply with section 3(2) of the Health and Safety at Work etc. Act (HSWA) 1974. This section covers the general duties that self-employed workers have to others who are not their employees. It was updated to include the changes in the square brackets below.

Since 1^st October 2015, the law will apply to you if you carry out an undertaking of a prescribed description, or your work activities pose a health and safety risk to others.

It is important to note that even if you are exempt, you could still be liable under common and civil law, as you have a duty of care to others. If you are found to be negligent and have caused someone harm, they could claim for damages, such as compensation. It is important to be aware of your duty of care and what you need to do.

Other changes in legislation

The Deregulation Act 2015 (Health and Safety at Work) (General Duties of Self-Employed Persons) (Consequential Amendments) Order 2015 also makes amendments to other pieces of health and safety legislation under Regulation 15 of the Health and Safety at Work etc. Act 1974.

If your activities are not classed as a prescribed undertaking, and they do not pose a risk to others, you will also be exempt from:

• Providing or ensuring the provision of first-aid equipment under Regulation 5 of the Health and Safety (First-Aid) Regulations 1981.
• The provision and assessment of PPE under the Personal Protective Equipment at Work Regulations 1992.
• The requirements of:
  – The Manual Handling Operations Regulations 1992.
  – The Provision and Use of Work Equipment Regulations 1998.
  – The Lifting Operations and Lifting Equipment Regulations 1998.
  – The Management of Health and Safety at Work Regulations 1999.
  – The Control of Substances Hazardous to Health Regulations (COSHH) 2002.
  – The Work at Height Regulations 2005.
  – The Control of Vibration at Work Regulations 2005.
  – The Control of Noise at Work Regulations 2005.
• Reporting under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013.

These exemptions are listed in the Schedule of the Order, along with details of the changes.

Do your work activities pose a risk to others?

As a self-employed worker, health and safety legislation will apply to you if your work activities pose a risk to others. Under the Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015, the law will apply if:

• Your work activity is specifically mentioned in the regulations (i.e. it is a prescribed undertaking).
• your work activity poses a health and safety risk to others.
• you are an employer, regardless of whether you are self-employed for tax reasons.

Don’t forget that you are also responsible for your own health and safety. However, you won’t need to worry as long as you are exempt from the above criteria.

Work activities specifically detailed in the regulations

So what work activities are mentioned in the regulations? You will need to comply with health and safety law if you do any of the following prescribed activities:

• Agriculture (including forestry), which is defined in 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998.
• Any work with asbestos, including sampling activities and any activity carried out by a duty holder under Regulation 4 of the Control of Asbestos Regulations 2012.
• Any work carried out on a construction site and as a duty holder under the Construction (Design and Management) Regulations 2015.
• Any activities involving gas and where the Gas Safety (Installation and Use) Regulations 1998 apply.
• The contained use of genetically modified organisms.
• The operation of a railway.

These activities are classed as high risk. If you carry out any of these, you should be aware of what your legal obligations are. You can find out more on the HSE’s webpage on self-employed workers.

Work activities that pose a health and safety risk to others

As a self-employed worker, the law will also apply to you if any of your work activities pose a risk to other people’s health and safety. It doesn’t have to be a prescribed undertaking either. If your work could harm others, then you will need to comply.

• Other people – Could include clients, contractors, customers and members of the public.
• Risk – Is the likelihood of harming someone as a result of your work activities and the consequences.

You should know whether your work activities will pose a risk. However, completing a risk assessment is the best way of confirming this. It also provides evidence that you are exempt if the results show your work activities do not pose a risk to other people.

There are five steps to risk assessment, which are:

1. Identification of hazards.
2. Deciding who could be harmed by the hazard and how.
3. Evaluating the risks identified and deciding what precautions are necessary.
4. Recording the findings of the risk assessment.
5. Reviewing and updating the risk assessment where necessary.

We have a guide in our knowledge base that you can access to learn how to carry out an effective risk assessment. The HSE also has guidance and examples, which can help you determine whether your work creates a risk.

Examples of self-employed roles that pose a risk:

• Electricians.
• Plumbers.
• Hairdressers (using chemicals).
• Carpenters.
• Gardeners.
• Health and safety consultants.
• Landlords.
• Bricklayers.
• Handy workers.
• Mechanics.

Remember, you are exempt if:

• You only work for yourself.
• You have no employees.
• Your work activities are not prescribed undertakings under the regulations.
• Your work activities do not pose a risk to anyone else.

It does not matter whether you work from home or elsewhere. It is about the work activities you carry out and whether you meet all of the requirements for exemption.

Always be sure that you are exempt, so you do not fall foul of the law. If you are still in doubt after completing a risk assessment, it may be worth seeking professional advice on whether you need to comply.

Do you need to do anything else?

You should still look after your own health and safety, even if you are exempt from health and safety law. Part of this is taking into account any work activities that could cause you harm.

• You may be a freelancer that works from home on your computer for most of the day. Using display screen equipment (DSE) for prolonged periods and working at a poorly set up workstation can have an adverse effect on your health, e.g. back pain and Repetitive Strain Injuries (RSI).
• You may talk to customers on the phone during your working day. There may be difficult conversations that could cause you stress.
• You may wash people’s hair and use no bleaching agents, but having wet hands for most of the day may cause skin issues.
• You may run a cake business from your home. Being exposed to flour dust frequently could cause respiratory issues.

These are just some examples, but it highlights the importance of following good health and safety practices, even if the law does not apply to you. An example of one of these good practices is attending some training to reduce the risks to your own health and safety as much as possible. Whilst it is not mandatory, it is vital to take care of yourself to carry out your work without any problems.

If you are an employer, you must ensure you comply with employer-related health and safety duties, as well as those relating to self-employment if you put others at risk.

Summary

Some self-employed workers may think that health and safety law only applies to employers, or they don’t have to comply as they work alone or from home. Remember, if any of your work activities are a prescribed undertaking under the regulations or they could put other people at risk, you must follow health and safety law. This is also the case if you have any employees (even temporary ones).

It is always important to look after your own health and safety. Being injured or becoming ill whilst carrying out your work can cause significant problems (particularly financial ones). Therefore, it is within your own interest to look after your health and safety as a self-employed worker.