Health and safety: legal implications of Brexit for your business

Whilst a number of UK-specific Health and Safety regulations are based on EU directives, the heart of the UK regulatory regime lies in the Health and Safety at Work etc. Act 1974 (HSWA).  Brexit is therefore unlikely to cause any fundamental change.

Nevertheless, Brexit does raise the following issues in the field of Health and Safety:

• Some recent unpopular pieces of legislation, such as the Construction (Design and Management) Regulations 2015, which have been driven by the EU, could be reviewed. Whilst the UK Health and Safety Executive supports the objective of ensuring safety in construction work, the prescriptive nature of the regulations could be reviewed.

• The UK fought hard to qualify the legal duty placed on employers by the HSWA by incorporating the phrase “so far as reasonably practicable” in 1989. It seems likely that UK business would continue to fight for such proportionality to be retained in Health and Safety regulation, something which might be easier to achieve once the UK sits outside the EU.

• As the Lofsted review in 2011 showed how the UK’s current Health and Safety regime is improving safety, it seems unlikely that the UK government would jeopardise those safety standards to confer a UK trading advantage, unless there is a proven alternative which meets Health and Safety objectives. Brexit will, however, enable the UK government to consider the issue independently.

European Convention of Human Rights

• Brexit may also result in the UK deciding to withdraw from the European Convention on Human Rights. Such a move may ultimately have a greater impact on Health and Safety law in the UK than Brexit itself. For example:
  • the loss of “fair trial” arguments under Article 6 ECHR might adversely affect defences relating to due process, whilst UK government could limit the rights of a defendant investigated or charged with a “crime”, including an H&S offence; and
  • the burden placed on public bodies in the coronial process might be reduced as a result of Article 2 ECHR obligations being removed. 

Visit our Brexit page for more on the legal implications of Brexit for your business, or register to receive regular Brexit updates by email.