BREXIT Health & Safety and CDM Regulations

So …… is leaving the EU going to affect CDM?  Maybe, but not yet.  Watch this space ……

The Legislation

Health and safety law for the protection of employees in the UK falls under the umbrella of the Health and Safety at Work etc Act 1974 and has been largely set by EU Directives.  In 1992, for example, the “six pack” was introduced:

• The Management of Health & Safety at Work Regulations
• Manual Handling Operations Regulations
• Display Screen Equipment (DSE) Regulations
• Workplace (Health, Safety and Welfare) Regulations
• Provision and use of Work Equipment Regulations
• Personal Protective Equipment (PPE) Regulations

The six pack came about because of a European framework directive, which was intended to harmonise health and safety legislation throughout Europe and was followed by five other directives.  One might argue that the six pack did not introduce new obligations on employers, but embodied practices which are a requirement of the 1974 Act.  Indeed, prosecutions for failures to meet the requirements of the six pack are generally taken under the auspices of the 1974 Act.

The CDM Regulations were enacted as a requirement of European Council Directive 92/57/EEC Implementation of Minimum Safety and Health Requirements at Temporary or Mobile Construction Sites.  The 1994 Regulations and the 2007 Regulations failed to implement the requirements of the directive and it was against the background of threat of the UK being fined by the EU for non compliance, that the 2015 Regulations were introduced.

The 2015 Regulations took cognisance of the Lofstedt Report: Reclaiming Health and Safety for All, to

“…consider the opportunities for reducing the burden of health and safety legislation on UK businesses whilst maintaining the progress made in improving health and safety outcomes…”

Options for Change

Options for the six pack are to repeal, amend or allow to remain unchanged. 

Repeal of the six pack may be unwelcome to employers and employees alike.  Protection would remain under the 1974 Act, however the valuable guidance offered by the six pack would be lost, creating uncertainty.  Amendment might be limited to updating to meet the requirements of new technology and working practices, with this legislation remaining unchanged for the foreseeable future.

Options for the CDM Regulations are to repeal, amend or allow to remain unchanged. 

If the Regulations are repealed, protection would remain under the 1974 Act; again, however, valuable guidance would be lost.  The Regulations do provide that the Secretary of State must carry out a review and publish a report no later than 6 April 2020. Application of the Regulations is evolving, so there is an attraction in this legislation remaining unchanged for the time being.

The Benefits

Whilst EU legislation cannot be attributed as the cause, there has been a decline in fatalities since introduction of the six pack and the incidence of occupational ill health has reduced (excluding mesothelioma, which arises from exposure prior to introduction of the six pack).

Reviews of health and safety legislation (eg Loftstedt) have found that EU regulation has been positive.  Overall, there has been a good effect on workers’ health and safety and no evidence put forward that current legislation is an undue burden.

What Next?

Given the volume of work ahead for the UK legislature, it appears likely that current health and safety legislation shall remain unchanged for the immediate future and other priorities shall prevail.

Over time, general health and safety legislation needs to be updated to reflect changes in technology and work practices.  The CDM Regulations are due for review early in 2020, so there appears to be little motivation for change before then.

In construction, we have been addressing safety issues with some measure of success, reducing rates of death and injury.  We must now address occupational health and we would be well advised to influence future legislative changes to promote health in construction.

Summary

There is little motivation for immediate or substantial change. We have legislation which works well and the sensible approach would appear to be one of evolutionary change.  Meanwhile, as an industry, we need to take the initiative and improve standards irrespective of the statutes, particularly in respect of occupational health.