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What will Brexit mean for Health and safety regulation in the UK and legislative compliance in general?

The Health and Safety Executive (HSE) have been involved in discussions with the Department for the Exit of the EU from the early stages of Brexit planning, and have recently made the following statement. 

‘Whatever deal the UK leaves the EU with, or in the event of no-deal, HSE’s approach to regulation is to preserve the UK’s high standards in health and safety and to continue to protect people and the environment’. 

At face value, this statement confirms the HSE’S intention to maintain our current safety standards and, with the UK’s long and often world leading status in Health and Safety regulation and enforcement, it is surely what we in the UK would expect.

The history of UK safety regulation and the impact of EU membership

The UK has a history of over a century of health and safety legislation development and implementation. Our safety standards are amongst the most rigorous and tightly enforced in the world with a supporting framework for on-going monitoring, review and progressive development of safety standards across a broad range of compliance issues.

With this backdrop, the UK joined the European Economic Commission (EEC, now the EU), with Ireland and Denmark in 1973. 

The following year, the Health and Safety at Work etc Act 1974 was enacted as UK legislation, independent of the EEC, replacing previous elements of legislation such as the Factories Act. This enabling act was, and continues to be, the bedrock of all UK health and safety regulation.

Article 153 of the Treaty on the Functioning of the European Union (TFEU) gives the EU the authority to adopt directives in the field of safety and health at work. The Framework Directive, with its wide scope of application, and further directives focusing on specific aspects of safety and health at work are the fundamentals of European safety and health legislation.  

Member States like the UK are free to adopt stricter rules for the protection of workers when transposing EU directives into national law. Therefore, legislative requirements in the field of safety and health at work can vary across EU Member States but will generally satisfy common basic goals.

As a result, the UK has adopted EU Directives on health and safety, but has also adopted/created its own legislation in the field and will continue to do so.  For example, while the current Control of Asbestos Regulations 2012 were amended in response to an EU Directive, the UK has had some asbestos legislation in place since 1931, but ‘modern’ regulations since 1983 (licensing) and 1987 (the first Control of Asbestos at Work Regulations), while members of the EU, and independent of it.   

In health and safety, the most notable implementation of EU Directives came in 1992 with the introduction of the EU ‘six-pack’.  This was a set of six individual sets of health and safety regulation enacted into UK law.  There are:

  • The Management of Health & Safety at Work Regulations.  Updated in 1999.
  • The Manual Handling Operations Regulations
  • The Health and Safety (Display Screen Equipment) Regulations (DSE)
  • The Provision and Use of Workplace Equipment Regulations (PUWER).
  • The Workplace (Health, Safety and Welfare) Regulations
  • The Personal Protective Equipment at Work Regulations

What will happen if/when we leave?

It will be business as usual. There is already in place an Act of Parliament, The EU (Withdrawal) Act 2018, which brings across the powers from EU Directives. This means that workers in the UK will continue to be entitled to the rights they have under UK law, covering those aspects which come from EU law (including Working Time Regulations, TUPE and health and safety legislation such as COSHH and CAR etc).

 The HSE have pointed out that domestic legislation already exceeds EU-requirements in a number of ways. The government will make minor amendments to the language of workplace legislation to ensure that existing regulations reflect the UK is no longer an EU country, but these amendments will not change existing policy. This will provide legal certainty, allowing for a smooth transition from the day of EU exit. 

As part of the adoption of EU Directives and the transition from the EU, the HSE has made comments on specific regulations, namely the Classification, Labelling and Packaging Regulations (CLP) and The Registration, Evaluation, Authorisation and Restriction of Chemicals Regulations (REACH).

CLP introduces a globally harmonised system (GHS) of labelling and packaging of chemical substances, using the GHS pictograms, and this has been adopted into the COSHH Regulations, and on international material safety data sheets.  The HSE advises that this will continue to be adopted in the UK in order that international trade will continue unaffected in this regard. 

The HSE have issued guidance on how to comply with the requirements of REACH i.e. buy and sell chemicals in the EU in the event of a no deal.

Further to this, there has been a recent consultation on an EU Carcinogens and Mutagens Directive, which will make Workplace Exposure Limits more stringent on 11 carcinogenic substances.  While this has gone out to consultation, the HSE expects to adopt the new limits in the light of new scientific evidence and the spirit of worker protection, as opposed to solely the result of EU direction.

The HSE have been unambiguous in that they intend for current health and safety standards and regulations to remain once the UK leaves the European Union.

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