EU Referendum Result – Where are We Now on Health and Safety Laws and the Future of the UK Health and Safety System Post British Exit of the EU:
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Dear Colleagues,
Overview – What Happens Now
The Health, Safety & Environment Department has received a number of enquiries regarding the impact of the EU Referendum Result on UK Health and Safety Laws both presently and in future and this LTB is to set out the position.
The UK decision to leave the European Union has prompted the question of whether current EU Health and Safety regulations could be revoked immediately.
This is not the case. Many EU Health, Safety & Environmental directives have been transposed into UK Law so currently nothing changes until the UK government puts in place mechanisms for further deregulation. However post-Brexit it is highly likely that the UK will have less influence over EU Law and in the development of further EU Law up to the time we leave the EU, which could be as long as two years.
Throughout the UK membership of the EU the Health and Safety at Work etc. Act (HASWA) has been in place and effective. Without doubt we should continue to apply our successful risk-based management systems. Many UK organisations will want to continue to work and trade within the EU and it will be in their interest to continue maintaining compliance. The UK has been a leader in influencing other EU nations and regulators in developing strong foundations for future health, safety and environmental laws.
The CWU along with the TUC, UK Hazards Campaign, Safety Professional bodies such as IOSH, IIRSM have all stated that they will continue to promote and actively support effective health, safety and environmental standards, risk management and agreed international standards as well as to defend against any erosion of health and safety protections for workers and the public. As UK organisations will want to continue to trade with Europe, it will be in everyone’s interest to maintain the status quo. The UK has already helped to influence sound foundations for European health and safety and beyond and our expertise and input should continue to be valued. In summary:-
• Nothing formal can happen until the UK Government gives formal notice (Article 50)
• The Government says it will not give notice until next year (very possibly even longer)
• The TUC does not want an early triggering of Article 50.
• It will be Two years from then before withdrawal (this can be extended)
• meanwhile all existing H&S regulations apply
• It is unclear what role the UK will be able to play during the notice period.
Background
In the United Kingdom there are many regulations relevant to health, safety and welfare at work. Many of these give effect to European Union directives which are transposed into UK Regulations and introduced as Law.
TUC/CWU Campaign
The TUC, CWU and most Trade Unions campaigned against withdrawal from the European Union, by emphasising that many positive changes for workers in the UK have happened directly as a result of EU membership and making a strong case for a social Europe. In recent years, EU-led improvements in health and safety protection have been more limited than in the past, but the overall contribution of EU regulations on health and safety to the UK workforce is substantial. As shown by a recent evaluation of EU regulations, the overall package of directives is practical, fit for purpose, and, more importantly, effective. It is clear that EU membership continues to deliver wide-ranging protections to UK workers, and
therefore UK Trade Unions wanted to continue to be part of the European process, be more actively engaged and support an improved and revitalised package of measures aimed at tackling the huge burden of occupational illnesses that are being experienced both in the UK and across the EU.
EU/UK Health & Safety Law History
In recent years much of Britain’s health and safety law has originated in Europe.
Proposals from the European Commission may be agreed by Member States, who are then responsible for making them part of their domestic law. Modern health and safety law in this country, including much of that from Europe, is based on the principle of risk assessment.
The UK joined the EU in 1973.
The 1986 Single European Act led to a significant increase in the volume of health and safety Directives. Amongst other things that Act abolished national vetoes in a host of areas and increased the legislative powers of the European parliament so creating a “European Union”.
For Health and Safety, the biggest change was the Health and Safety Framework Directive (89/391/EEC) and five “daughter” directives1 which established broad-based obligations on member states to ensure that employers evaluate, avoid and reduce workplace risks in consultation with their workforce.
At the time, the UK already had in place a legislative system which met most of the requirements of the Directive. The UK had previously introduced the 1974 Health and Safety at Work (HSW) Act as well as Regulations that had been made under it such as the Safety Representatives and Safety Committees Regulations 1977.
Although, in the UK, the HSW Act was considered adequate as a means of achieving the appropriate standards, the EU H&S Directives were more prescriptive and detailed and thus it was necessary to extend the law. Carefully avoiding any disruption to the HSW Act, six new sets of regulations (called the ‘six pack’), together with Approved Codes of Practice and Guidance Notes were enacted on 1 January 1993. A central principle was the requirement of assessing and managing risk, as well as the legal duties of employers.
Since then, the UK Government has had to make a number of modifications to bring UK legislation in line with the provisions of the Framework Directive, including the Health and Safety (Consultation with Employees) Regulations 1996 which arose from the threat of infraction proceedings and extended worker representation to non-unionised workplaces. In addition the Government had to change the law to ensure that the police were covered by health and safety legislation. A range of other health and safety directives, implemented through national regulations have also come about as a result of EU regulation. These cover the management of specific workplace risks such as noise or work at height, as well as the protection of specific groups of workers (such as new or expectant mothers, young people and temporary workers). Specific regulations cover areas such as construction work, asbestos, chemicals, off-shore work, etc. Although the pace of activity peaked soon after the Single European Act with the introduction of the ‘six-pack’, legislative activity has continued and health and safety regulation in the UK is now firmly driven by the EU.
41 out of the 65 new British health and safety regulations introduced between 1997 and 2009 originated in the EU.
UK Referendum Brexit Result and Health and Safety Rights and Protection
On the 23 June the UK voted by 52% to 48% to leave the European Union (EU). Prior to the vote the TUC, CWU and other major Unions warned that vital health and safety at work rights from EU-driven laws could be under threat if he nation voted in favour of leaving the European Union (EU).
There is now a real and serious danger that the final outcome could mean that the UK loses much of the Health and Safety protection that EU membership has given the UK by way of Workplace Health, Safety and Employment rights, which are all now at risk in the long term and much will depend on the negotiations that will take place between the UK and the EU and it could be years before this process is concluded but in the meantime, all European directives and obligations continue to apply.
The outcome of the negotiations is hard to predict but from the UK side, talks will be led by an anti-Health and Safety, anti-Workers’ Rights Tory Government that has spent six years undermining health and safety law and enforcement in the UK, despite EU Legislation and many Conservatives want trade deals and benefits with Europe and further afield without the employment and safety protections that come with it via the EU. If a deal is eventually reached whereby the UK is no longer covered by EU Regulations on health and safety then the UK Tory Government will be able to reduce standards to whatever they want or remove them completely.
Prominent leave campaigners have called for a halving of regulations derived from EU law, or flexibility in interpreting rights, claiming that they are a burden on British businesses who would benefit from a reduction in so called ‘Red Tape’ – which is really the rights and protections of millions of working people they want to remove:-
• Boris Johnson MP (Conservative) stated “We must scrap the Social Chapter, Employment Regulations, the Collective Redundancies Directive, the Atypical Workers Directive, The Working Time Directive and a Thousand More!”
• Priti Patel MP (Conservative) and now Work & Pensions Minister said “There is a need to halve the burdens of the EU Social and Employment Protection Legislation.”
• John Redwood MP (Conservative) said “We must opt-out of the Social Chapter”
• Chris Grayling MP (Conservative) said “EU H&S laws are Red Tape”
• Michael Gove MP (Conservative) said “The battery of European measures from the Working Time Directive, to the Social Chapter need to go.”
Three of these are now in the Prime Minister Theresa May’s cabinet.
The current government had already drawn up an agenda of health and safety laws it wished to change before the referendum result. These included a watering down of the DSE Regulations, Working Time Regulations, Construction Design Management (CDM) Regulations, Optical Radiation Directive and Chemical Directive. The Tory Government also want to remove Risk Assessment requirements from more small businesses. This list was drawn up as a shopping list for change within the EU. Once outside the EU other changes are possible without discussion with the EU. Likely long term targets will be Safety Reps and Consultation, PPE Regulations and Temporary Workers.
During the period in the run up to the UK’s exit from the EU, the UK will have little involvement on Health and Safety developments. There will be a full evaluation of all of the H&S directives by the EU with little UK involvement. There are current recommendations for new action on Stress and MSDs at EU level. New EU exposure limits on Carcinogens will not apply automatically in the UK, or the REACH improvements. UK Trade Unions will certainly have no say in EU negotiations on H&S, even if new regulations do apply.
The TUC/CWU ‘Protect Health & Safety’ Campaign Continues. We cannot have a system which gives equal treatment to bankers, manufacturers, employers and those providing services, while workers are denied the same rights. It’s going to be important that the Unions oppose these cuts to rights that workers and their Unions fought so hard to win. It’s going to be important to ensure that MPs, particularly Conservative MPs – get the message that crucial protections are not up for grabs when the time comes and the debate commences.
It’s vital the UK continues to apply the current risk-based health and safety system, which includes laws from EU directives, because it’s been found to be fit for purpose by several independent reviews E.g. the Tory Governments commissioned; 2011 ‘Lofstedt’ Independent Review of UK Health and Safety Legislation and the 2014 ‘Temple’ Independent Triennial Review of the HSE’ lead by Martin Temple who has now been appointed HSE’s new
Chair (2016):-
Professor Ragnar Lofstedt’ concluded: “There is no case for radically altering current health and safety legislation in the UK.”
• ‘Martin Temple CBE’ concluded: “There is a continuing need for the functions that HSE delivers, and a very strong case for those functions to continue to be delivered by an arms-length body.”
TUC Action Plan
The TUC has drawn up a new ‘Action Plan on Health and Safety’ as follows:-
• New TUC campaign on protecting workers rights and H&S
• Renew campaign for UK to ratify all ILO labour conventions on H&S
• Ensuring that BME and migrant workers are protected from abuse and violence at work
• Revisit and intensify work on core issues such as stress, carcinogens etc.
• Retain links with fellow Trade unionists through ETUC and ITUC
• Continue H&S organising campaign
• Use the H&S rights we have
Attachments:
• EU Membership and Health and Safety TUC Report
• Protecting Health and Safety after ‘Brexit’ – Protecting Rights – Building Unions TUC
Yours sincerely
Dave Joyce
National Health, Safety & Environment Officer
Email Attachments – Click to download
Attachment 1 – 16LTB475 Future of the UK Health and Safety System Post British Exit of the EU.docx
Attachment 2 – EU Membership and Health Safety – TUC Report 2016.pdf
Attachment 3 – Protecting Health and Safety after ‘Brexit’ – Hazards plenary- July2016.ppt
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