Health and Safety Law Post Brexit

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The pandemic has of necessity shifted business focus and priorities for the past 6 months. However:

  • the UK left the European Union on 31st January 2020;
  • the UK still has no trade deal agreed with the EU;
  • the end of the transition period on 31st December 2020 when, with no deal, current trading and travel reciprocity with the EU will end, is looming.

Brexiteer or Remainer, virus or no virus, business focus needs to shift back to Brexit.

Ireland is now the only European Union (EU) member state where English is the primary language spoken and many substantial businesses (such as Amazon, AstraZenecaAbbott, Aon, Cisco, Dell, eBay, Eli Lilly, Facebook, Fidelity, GlaxoSmithKline, Google, IBM, Mastercard, Oracle, Pfizer and Yahoo) along with major London based banking institutions (such as Barclays and Bank of America Merrill Lynch and others) have moved headquarters or office bases to Dublin. This shift avoids the risk from 2021 of being shut out of the EU market which has one of the largest economies in the world and is the world’s largest trading block.

It is often assumed that health and safety requirements across the EU are identical. That is not the case. There are common minimum standards derived from EU Directives, but some differences between EU member states do exist. There is greater scope for divergence between the EU and the UK as we move forward because the UK  no longer has to implement EU Directives. Because we share a common language, the easiest way to track those future changes, which will be important for those with ongoing EU interests (or trade with the EU)  may be to keep watch on changes in Ireland.

Finch Consulting’s health and safety solicitor Sue Dearden and engineer and training expert Martin White consider some of the differences between Ireland and UK health and safety law at present, and ways to track divergence through Ireland, going forwards.

Terminology and History

Terms such as Great Britain, UK and Ireland are often confused.

  • Great Britain (GB)means England, Scotland, and Wales
  • United Kingdom (UK) means England, Scotland, Wales, and Northern Ireland
  • Ireland means the independent Republic of Ireland which lies south of and shares its border with Northern Ireland.

The EU was created by the Maastricht Treaty in 1992, absorbing the European Community formerly known as the European Economic Community (EEC) which in turn had merged three organisations set up after World War II in an attempt to ensure lasting peace across Europe through the establishment of a common market and elimination of trade barriers, creating a level playing field in business for member states.

The UK chose not to join the original organisations but instead joined the European Free Trade Association with Austria, Denmark, Norway, Portugal, and Sweden (all of which, with the exception of Norway are now EU states). The UK applied to join the EEC but was blocked by France in 1963 and 1967. Its application was finally successful in 1973, alongside Denmark and Ireland.

Because of its late entry, a number of elements of the EEC had already been established which had to be accepted by the UK, such as the common agricultural policy (CAP) which absorbed 80% of the total budget, and which provided a financial support scheme for farmers in members states with the aim of creating sustainable food security and protecting farming incomes.

Separately to this, in 1901 the Engineering Standards Committee, which would later become the British Standards Institution (BSI), became the world’s first national standards body. The interest in standardisation progressed in the 1920s, and in 1946 the first Commonwealth Standards Conference led to the establishment of the International Organisation for Standardisation (ISO). Since then, BSI has continued to work with ISO and European standards bodies (e.g. CEN and CENELEC) to develop standards across a multitude of industries.

Health and Safety Evolution across the EU

The EU is often blamed (or credited depending on your perspective) for the revolution in health and safety regulation from the late 1980’s though the UK’s drive towards improved health and safety controls had begun even before EU membership.

Inadequacies in health and safety management in the UK were thrown under a spotlight by the 1966 Aberfan disaster and, following the report from a committee appointed in 1969 to consider legislative reform, the Health and Safety at Work etc Act (HSWA) was passed into law in July 1974. The HSWA remains at the cornerstone of health and safety management in the UK. The HSWA applies across GB and was also embedded in Northern Ireland by the Health & Safety at Work (Northern Ireland) Order 1978.

The HSWA: established the Health and Safety Executive (HSE); defined enduring key legal duties to take reasonably practicable steps to ensure health and safety and made breach of those duties a criminal offence.

Before the HSWA, around 1,000 workers were being killed annually in GB as a result of workplace accidents[1]. By contrast, in the 12 month period to the end of March 2020 there were 111 fatal worker accidents in GB from a substantially larger workforce.

The UK has retained its lead in health and safety across the EU.

According to the HSE, “UK businesses are more likely to have a health and safety policy, and to follow this up with formal risk assessment, compared to other EU countries.” [2] Workplace deaths per 100,000 of the working population are lower than EU member state counterparts as are the percentages of workers requiring sick leave and workers suffering work related ill health.

Being ahead of other EU states on health and safety management effectively meant that UK business was a beneficiary of the EU level playing field aspiration in health and safety. With EU competition required to meet standards the UK was maintaining anyway, it was primarily our manufacturers who were protected from EU competition which would otherwise be able to undercut on price as a result of not being required to meet those standards.

The level playing field aspiration in the EU went hand in hand with the moral aspiration to ensure that workers were protected, and workplace death and injury minimised. These goals were lent impetus in the late 1980s by the 1986 Single European Act. Before that Act, health and safety Directives needed unanimity among member states to be passed. Following 1986 only a “qualified majority” vote of Member States was needed.

A Framework Directive and six “Daughter” Directives (the “Six Pack”)[3] were swiftly issued. Others have followed since. Once Directives have been passed, member states are required to introduce their own legislation to implement them. This means there are variances in wording and precise requirements, but there is surety of a common minimum standard being met.

In the UK, compliance with health and safety Directives has generally been achieved through Regulations made under the HSWA. Health and safety regulations continue to be binding even after the end of the transition period because they are part of UK law.

Although adherence to British, European, or International standards is not usually mandatory, demonstration of compliance with a relevant standard can be an effective way of demonstrating the implementation of reasonably practicable measures.

What kind of differences are there presently? 

It was the UK which determined that health and safety breaches would be criminal offences within its borders. Elsewhere in Europe, health and safety breaches are still primarily regarded as administrative, generally without the risk of imprisonment as a penalty for individuals, and with corporate breaches being punished by substantially lower penalties than those demanded by the Sentencing Guideline which is binding in England and Wales (advisory only in Scotland and NI).

Some of the differences in H&S law can be subtle between EU states and the UK. But they are there, and if you established a business base in the EU pre exit, it is important to know of and understand the differences to ensure that you comply with the local requirements.

For example, in GB, section 3 of the HSWA imposes a duty on every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health and safety. The requirement in Ireland set out in Section 12 of the Safety, Health and Welfare at Work Act 2005 (as revised to 1st April 2020), is more limited, imposing a duty to others only in relation to others at the place of work. 

Under Section 2(3) of the HSWA in GB it is the duty of every employer to prepare a general policy with respect to the health and safety at work of his employees. Many H&S policies are broad and brief. In Ireland’s corresponding section 20 of the Safety, Health and Welfare at Work Act 2005 employers are required to produce a written statement which has to identify: the hazards and risks identified, the protective and preventative measures taken, plans and procedures and measures to be taken in the event of an emergency, the duties of employees, names, titles and positions of everyone responsible for performing tasks pursuant to the safety statement and so on. The Irish requirement is more comprehensive.

And, as one final example, in GB, the Management of Health & Safety at Work Regulations 1999 require risk assessments to be undertaken and recorded in writing if there are 5 or more employees. In Ireland, under section 19(1) of the Safety, Health and Welfare at Work Act 2005 risk assessments need to be in writing regardless of the number of employees.

Going forwards, without any ongoing obligation on the part of the UK to implement EU Directives, more significant divergences  could begin to emerge.

What can be done about this?

UK businesses with operations in EU member states and, subject to trade deal agreements, those importing from the EU or exporting goods and/or services  to the EU will need to understand the differences and divergences going forwards.

Because of the common language, the changes in the EU can probably be tracked most easily through changes in Ireland. Their equivalent of the Health and Safety Executive (HSE) is the Health and Safety Authority (HSA). They may choose to do more than the minimum required by the EU, but if you meet their standards then you should be compliant in the EU. You can sign up for the HSA’s free newsletterand search their website which will help to keep you abreast of developments.

You also need to be alert to the fact that if the UK pulls ahead of the EU on health and safety standards, then EU imports may not meet UK standards, so again it is important to monitor emerging differences and be mindful of the fact that any new requirements which must be met in the UK will not necessarily reflect what is being implemented elsewhere. This could have an impact on the terms required in contracts through which goods and services are imported.

At present, BSI has publicly stated[4] that it will continue to work with European and International standards bodies, and as such it seems unlikely that there will be significant divergence of British Standards from those in use in other countries or regions. However, in the event that the requirements of UK law differ from elsewhere, it will be the law of each state which has precedence.

Finally, on a more mundane final note, don’t forget that if we leave without a deal at the end of this year, UK driving licences will no longer be recognised in the EU (including Ireland). So, whether travelling for business purposes or pleasure – don’t forget that international driving licences need to be obtained by staff driving in the EU (including Ireland) to avoid a breach of EU road traffic obligations.

For more information, comments or questions please contact:

Susan.dearden@finch-consulting.com

Martin.white@finch-consulting.com

[1] Pre RIDDOR so figures are estimated, and available information excludes Northern Ireland

[2] From H&S Statistics in the UK Comparison with the European Union published by the HSE on 30th October 2019 – the statistics regarding workplace deaths and ill health are derived from the same source

[3] The six pack: Workplace; Work Equipment; PPE; Manual Handling;  DSE; and Carcinogens/COSHH

[4] BSI Website https://www.bsigroup.com/en-GB/about-bsi/uk-national-standards-body/standards-and-eu-exit/