There is no doubt Brexit poses health and safety challenges to UK businesses. In this article we will look at health and safety post Brexit. We will discuss what a Brexit health and safety world will look like.
The primary source of UK health and safety law is the Health and Safety at Work etc Act 1974. The Act is of British origin, and not European, so it remains as was and is.
The Health and Safety Executive (HSE) has stated in business guidance documents. That the legal duties to protect the health and safety of people affected by their work have not changed post Brexit. It has also stressed that employers should continue to manage risk in their business “in a proportionate way”.
Some minor changes to health and safety law will occur over the coming months. For example removing EU references in regulations but still retaining all the legal requirements. The 2006 European Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) was made UK law under the European Union (Withdrawal) Act 2018. The necessary amendments to REACH have been made so that it continues to operate exactly as before we left the EU.
There are amended rules to ensure that only safe and compliant work equipment and machinery is placed on the market. The UKCA (UK Conformity Assessed) marking is a new UK product marking that is used for goods being placed on the market in Great Britain (England, Wales and Scotland). It covers most goods which previously required the CE marking.
There are also new rules to ensure the safe and secure management of civil explosives.
Most health and safety legislation has remained exactly the same. All organisations must continue to operate with their duty of care. To reduce risk and protect people’s health and safety just as they did before we left the EU.
UK health and safety regulations are underpinned by the Health and Safety at Work etc Act 1974. The Act remains in place. The requirement to carry out a risk assessment on all work operations has not changed with the UK leaving the EU. Managing health and safety is still a UK legal requirement regardless of any trade deal or transition period.
There is no doubt that over time UK and EU health and safety regulations will be slightly different from each other. Some parts of new UK legislation will not be implemented in the EU, and vice versa.
As separate systems evolve for risk assessment, control measures and safety standards. Then it is inevitable that there will be different regulations that evolve over time. This then will be the challenge for UK businesses.
Businesses will need to adapt to ensure that they know the requirements in both the UK and in the EU. For example, a UK manufacturer with sites both in the EU and the UK will have to ensure that it complies with UK health and safety law at one site but EU law at the other.
All EU law has been copied exactly as it was at 10.59pm on 31 December 2020 and adopted into our own laws. The laws have been amended so that they make sense in that they refer to Great Britain not the EU. However these laws will only have limited application in Northern Ireland. In accordance with the Protocol on Ireland/Northern Ireland, and Northern Ireland will continue to comply with EU law.
Any retained legislation has been adopted into domestic law exactly how it stood in the EU at the moment we left. This includes all amendments made to the legislation up until that point.
Any amendments the EU published after 11pm on 31 December 2020 do not apply to retained law. As of now, the UK government is responsible for retained law and can apply any amendments to it as it sees fit.
From a health and safety perspective, most of the retained legislation is around chemicals regulation, so things like:
REACH: Registration, evaluation, authorisation and restriction of chemicals
CLP: Classification, labelling and packaging of substances and chemicals
PIC: Prior informed consent
Biocides, pesticides and plant protection products.
There are also the UK's own domestic laws to consider, that have been made to implement EU Directives. Most of these laws contained references to the EU and relied on EU regulatory bodies. As the UK is not part of the EU anymore, this legislation would have been ineffective due to these references.
As a result, large amounts of domestic law, including the newly retained law (which was essentially cut and pasted from the EU) also had to be amended to remove references to the EU and to fix deficiencies.
These amendments take the form of EX Exit Regulations. So far, the UK government has published more than 600 of them, making around 80,000 changes to legislation such as the Personal Protective Equipment at Work Regulations 1992 and Working Time Regulations 1998, which originated from the EU.