Brexit - what next for health & safety and your business?

Gowling WLG's Health and Safety partner, Susan Dearden, explores how Brexit may impact on Health and Safety and your business.

Health & Safety core legislation

The core legislation, around which the UK's health and safety regulations have evolved, is the Health and Safety at Work etc Act 1974 (the HSWA). While technically post-dating entry to the EU in 1973, the HSWA was the amalgamation of a mass of legislation and regulations that had previously existed but which had generally applied to specific high risk industry sectors - mining, railways, factories, agriculture and nuclear, for example.

The HSWA put in one place the health and safety law applicable to the whole of the UK. It introduced less prescriptive goals supported by codes of practice and guidance, and created the Health and Safety Commission ("HSC"), whose specific purpose was to propose new regulations over time, as well as to provide health and safety information and advice. The Health and Safety Executive (HSE) was formed by the HSC in 1975, to enforce health and safety law alongside the local authorities, with industry sectors and locations split between them.

Withdrawal from the EU will have no impact on this core legislation.

Secondary legislation

In time, withdrawal may impact on our secondary legislation - the regulations introduced since the HSWA as a direct consequence of EU directives. These started with the 'six pack' introduced in January 1992 - the first versions of the Management of Health and Safety at Work Regulations, Manual Handling Regulations, Display Screen Equipment Regulations, Workplace (Health, Safety and Welfare) Regulations, Provision and Use of Equipment at Work Regulations and Personal Protective Equipment Regulations (collectively the Regulations).

Most employers will be familiar with the current versions of the Regulations. Employers will also be aware of other regulations that have been introduced since 1992, dealing with every aspect of working life, from waste to working at height, from control of substances hazardous to health to construction design and management, and from testing requirements (particularly for electrical items) to reporting injuries, diseases and dangerous occurrences.

The UK has a very good track record when it comes to implementing EU directives as required. There is a perception that other EU counties may have been less diligent in doing so and that they do not prosecute breaches with the same degree of zeal or savagery of penalty. We have a reputation for having particularly stringent health and safety requirements, taking advantage of the wide and necessarily subjective interpretation of the meaning of "reasonable practicability" and in some cases imposing strict liability for breach (for example, under the Provision and Use of Work Equipment Regulations).

Within the UK, health and safety is sometimes regarded as onerous and burdensome and on occasion even a reason not to do things. The regulatory maze can be daunting and off-putting to inward investors looking to establish a business in the UK. On the other hand, we are rightly recognised as at least European leaders in health and safety, with the lowest rates per head of the working population of serious workplace accidents and fatalities.

Prosecution and enforcement

Prosecution is a domestic, not an EU, issue and as such prosecution policies are unlikely to be impacted by Brexit. Under the Sentencing Guideline (in force since 1 February 2016) (the Guideline) we have seen health and safety fines rise to reflect business turnover, with fines of up to £10 million under contemplation for businesses with an annual turnover up to £50million. The Guideline increases to a band of up to £20,000,000 if the charge is corporate manslaughter.    

This level of penalty, though, is a reflection of domestic policy only and is therefore unlikely to change as a result of Brexit.

Most prosecutions for health and safety offences are brought under the HSWA directly - almost 36% of post-Guideline convictions have been for a breach of sections 2 or 3 HSWA (essentially failing to take all reasonably practicable steps to ensure the safety of staff or others). This rises to 41% when other breaches of the HSWA are included. That, too, is unlikely to change.

The various health and safety regulations do, however, play a large role in the UK's health and safety regulatory regime. Convictions for breaches of the Provision and Use of Work Equipment Regulations, Work at Height Regulations, Construction (Design & Management) Regulations and Management of Health and Safety at work regulations together account for 22.5% of post Guideline convictions.

If Brexit allows a re-examination of the regulations which enforce EU directives, those regulations and others, might be reviewed. However, the regulations are effective and established and we do not consider that change will be a Government priority. Further, the income generated from the higher fines now imposed for breaches might be too valuable for there to be much parliamentary impetus behind changing the status quo in this area.

Article 50 and Brexit

Once Article 50 has been invoked to begin the mechanism for exit, the UK would leave the EU within two years, unless that time is extended by agreement between the member states while negotiations continue. Those negotiations will need to cover fixing the terms of the UK's exit (including all transition arrangements) and fixing our future arrangements with the EU.

It is likely that arrangements for the UK's future relationship with the EU (including new trading agreements) will need to be contained within a separately negotiated agreement. Establishing new trading agreements with the EU countries and the rest of the world will be a lengthy process. Estimates vary as to how long those negotiations will last, with some suggesting anywhere between four and ten years. Much will depend on how much value other countries put on their continued trading relationship with the UK.

There may be a period in which challenges are made on the basis that some regulations only implement EU directives which are no longer good law in the UK. However, our regulations are good law unless repealed by Government - and it is likely that legislators will write any EU regulations into UK law to ensure there are no lacunas until our domestic laws are brought into line - or changed.

Given that the regulations which enforce the EU directives will be able to be reviewed post Brexit, there may be an opportunity for a new consolidated HSWA. It would certainly be an opportunity to consolidate all of the regulations that remain in force, many of which repeat common principles.

Before the referendum, the Government had already embarked on a programme of reducing red tape and limiting regulation. Arguably, we now have an opportunity to be bolder, to reduce some of the regulations on which we rely and to merge others - to make the identification of compliance needs a more straightforward exercise. However, given the good that has been achieved through the implementation of the regulations, and given the income generating from sentencing breaches of them, it is unlikely that reform will get rid of their import altogether.

In short, this is an opportunity for consolidation, but for anyone who hoped a Brexit vote might rid them of some of the more onerous health and safety and compliance obligations, they are likely to be disappointed.

Post Brexit?

After Brexit, if we are to continue trading with the remaining EU states, our products will need to continue to meet EU health and safety standards.

We will no longer have any right to engage in debate about EU changes - we will have lost that seat at the negotiating table. To date, we have been able to use our excellent track record on health and safety to influence the content and pace of changes deemed necessary by the EU.

Those exporting products from the UK to the EU will need to accommodate EU safety standards, whether or not they are required in our domestic legislation. That may well have cost consequences for production - as well as some logistical difficulties if different versions of the same product are sold here.

Products imported from Europe will conversely need to meet our national standards as they evolve and consolidate too. If our standards evolve more strictly than those applicable in the EU (in keeping with our track record in this area), this may impact on the desire or ability of EU businesses to import their goods here, especially if the goods will need to be adapted to meet our different standards. This, of course, will not just impact consumer goods, but the very machinery on which many of our industries depend, and which are often imported from or through or supported in their maintenance and spare parts by, other EU member states.

Any trade tariffs too will impact upon the cost of exported goods and that in turn may impact adversely upon our ability to compete abroad. As evidenced by economic downturns historically, when businesses feel the pinch, health and safety budgets (which will include important training and refresher training, renewal of PPE, and investment in, for example, improved guarding for machinery) are often the first to feel the impact of a cutback in spending, which can lead to a rise in workplace accidents.

There may also be an adverse impact, as a result of Brexit, on the sufficiency and availability of skilled labour in some areas unless we join the Common Market. Fundamental to Common Market membership, though, is free movement of labour. Objection to that free movement was at the heart of the Brexit campaign, so that may not be acceptable.

The construction industry, for example, uses large numbers of skilled EU labour, as does the care sector. Being forced, through lack of choice, to use unskilled and inexperienced labour may also impact adversely upon even the most well-meaning employer's ability to maintain the health and safety standards achieved over many years.

Food for thought

While Brexit will no doubt have some impact on our health and safety laws going forwards, nothing will change in the short term.

How different will our laws be post Brexit? More streamlined and easier to follow? Perhaps. More relaxed? Unlikely. Watch this space...