{"id":475166,"date":"2023-03-03T06:50:05","date_gmt":"2023-03-03T06:50:05","guid":{"rendered":"https:\/\/www.constructionnews.co.uk\/?p=475166"},"modified":"2023-03-02T17:29:44","modified_gmt":"2023-03-02T17:29:44","slug":"trouble-on-the-horizon-the-safety-threat-posed-by-post-brexit-regulations-bonfire","status":"publish","type":"post","link":"https:\/\/www.constructionnews.co.uk\/health-and-safety\/trouble-on-the-horizon-the-safety-threat-posed-by-post-brexit-regulations-bonfire-03-03-2023\/","title":{"rendered":"Trouble on the horizon: The post-Brexit law cull threatening onsite safety"},"content":{"rendered":"

The Work at Height Regulations save lives and are hugely popular in the construction sector. But will moves to \u2018sunset\u2019 all EU laws dilute \u2013 or even destroy \u2013 them?<\/em><\/b><\/span><\/p>\n

Behind the innocuous-sounding \u2018Retained EU Law (Revocation and Reform) Bill\u2019, lies the prospect of an assault by the government on vital aspects of construction health and safety<\/a>.<\/p>\n

It is not that the government deliberately intends to make work more dangerous. But it could be an accidental side effect of the so-called \u2018sunset\u2019 bill, which would end the application of all EU-derived regulation in the UK by 31 December, except where the government decides otherwise on a case-by-case basis.<\/p>\n

A sunset clause is a provision of a law that will automatically end after a fixed period unless it is extended by law.<\/p>\n

As there are some 3,800 regulations across all industries, it seems unlikely that Whitehall \u2013 even working flat out \u2013 could review all of them this year, leaving question marks over the future of regulations that the industry understands and supports, in particular the Work at Height Regulations. The revocation bill was intended by then business secretary Jacob Rees-Mogg to underpin the UK\u2019s post-Brexit independence. He has since left office, but his bill remains.<\/p>\n

Popular rules<\/span><\/h3>\n

Any politician who makes the lazy assumption that all regulations are a burden on business would have a surprise were they to gauge opinion in the construction sector. The prospect of losing the Work at Height rules has brought forth a torrent of protest from every corner of the industry, reflecting the seriousness with which safety is now treated.<\/span><\/p>\n

\n

\u201c<\/i>If you do away with these regulations I bet every HSE inspector will still keep a copy because they are good and clear and tell you what needs to be done. Work at Height is not a burden\u201d<\/span><\/p>\n

Rob Candy, Scaffolding Association<\/span><\/h4>\n<\/blockquote>\n

The regulations apply to employers and those in control of any work-at-height activity, who must make sure work is properly planned, supervised and carried out by competent people. This includes ensuring the correct equipment is used and that risks have been assessed.<\/p>\n

The Health and Safety Executive (HSE) says falls from height are the largest cause of fatal injuries<\/a> across all industries, and in 2021\/22 accounted for 29 out of 123 fatalities. There were 30 fatalities of all kinds in construction, of which 13 were due to falls from height. The respective figures for 2004\/05 \u2013 the year before the regulations took force \u2013 were 53 and 26. In short, deaths caused by falls from height have halved since the regulations were adopted.<\/span><\/p>\n

If these regulations went, there would still be general legal protection under the Heath & Safety at Work Act 1974. But the act is not specific to work at height, which is why the industry is alarmed. <\/span><\/p>\n

Bill Dunkerley, a regulatory lawyer and associate partner at law firm Pannone Corporate, says the 1974 act is not industry or activity-specific and \u201cby its very nature it imposes generic obligations on employers which are of universal application across sectors\u201d. He adds: \u201cWithout these specific requirements remaining in place, this is likely to lead to a reduction in safety precautions, which in turn may result in an increase in injuries.\u201d<\/p>\n

Scaffolding Association chief executive Rob Candy says: \u201cIf you do away with these regulations I bet every HSE inspector will still keep a copy because they are good and clear and tell you what needs to be done. Work at Height is not a burden.\u201d<\/p>\n

Candy fears procurement would become more complicated without the regulations because \u201cif you want to ask a company about its safe working practices what do you ask them if there are no regulations to judge them against? Do you just ask if they do risk assessments and if they say \u2018yes\u2019 well great, but what does that mean?\u201d<\/p>\n

Suzannah Nichol, chief executive of Build UK, says: \u201cFalls from height and falling objects from height are the leading cause of preventable fatalities and injuries across all sectors in UK industry, not just construction, and the Work at Height Regulations are vital to ensuring employers and the workforce can manage the risks associated with them. The regulations create the framework to ensure workers are competent, access equipment is suitable and well-maintained, and set out principles that have saved countless lives since they were introduced in 2005.<\/p>\n

\u201cAbandoning them at the end of the year would be a massive backwards step and we are calling on the government to take action to ensure this does not happen.\u201d<\/p>\n

\n

\u201cI hope common sense prevails rather than any misguided ideological policy\u201d<\/span> <\/i><\/p>\n

Brian Berry, Federation of Master Builders<\/span><\/h4>\n<\/blockquote>\n

Brian Berry, chief executive of the Federation of Master Builders (FMB), agrees: \u201cIt would be an absolute nonsense. If the Work at Height Regulations were removed there is nothing to protect people working from heights as there is no domestic equivalent.\u201d Berry says workers would be left unprotected even in less dangerous situations than being up scaffolding, such as someone in an office going up a ladder to change a light bulb. \u201cI hope common sense prevails rather than any misguided ideological policy,\u201d he says.<\/p>\n

No burden<\/span><\/h3>\n

Further concern comes from David Mosley<\/a>, acting managing director at the National Access & Scaffolding Confederation, who says: \u201cMost companies and operatives within the industry work safely to established best practice and guidance. The Work at Height Regulations in their current form do not impose any additional burden upon them.<\/p>\n

\u201cI feel that the vast majority of the sector would like to see them retained. They are established, the sector understands them and can work safely while meeting their requirements.\u201d<\/p>\n

\n

\u201cThe vast majority of the sector would like to see them retained. They are established, the sector understands them and can work safely while meeting their requirements\u201d<\/span><\/p>\n

David Mosley, National Access & Scaffolding Confederation<\/span><\/h4>\n<\/blockquote>\n

Mosley fears that were the regulations lost, the chief beneficiaries would be the dodgier end of construction. He explains: \u201cOne would hope that reputable and prudent scaffolding contractors and their clients would push to retain safe working practices and a suitably qualified workforce.<\/p>\n

\u201cWithout the relevant legislation, however, or even with a diluted version of the regulations in place, it is likely that less scrupulous operators would lower their standards, which would obviously have a detrimental effect on safety.\u201d<\/p>\n

Danny Clarke, commercial director of the National Federation of Builders (NFB), says scrapping the regulations \u201cwould be a huge backwards step in protecting the safety of professional builders on site at a time when we need people the most\u201d. Clarke notes more than 550,000 days are lost each year due to injuries and it is \u201cimperative that we seek to strengthen safety on site rather than dilute it\u201d. If they are retained, the NFB would like to see the regulations reviewed to determine if improvements can be made.<\/p>\n

Peter McGettrick, chair of the British Safety Council, says major injuries and fatalities caused by falls from heights have reduced significantly in the 20 years since the regulations appeared and \u201cconstruction industry bodies have been calling on the government to think twice about doing anything that puts workers at greater risk of harm and they should listen to them\u201d.<\/p>\n

The industry clearly does not see itself as groaning under unnecessary regulations. Gwyneth Deakins, who as a senior HSE civil servant led the work on devising the regulations in the early 2000s, recalls: \u201cEvery so often we would be asked to go through EU-derived regulations and remove burdens on business, and we\u2019d go and ask the construction industry what burdens there were and, always, the answer came back there were none.\u201d<\/span><\/p>\n

The Work at Height Regulations derived from an EU directive, in turn based on older UK legislation, \u201cand I doubt there was much in the new regulations that was novel for the construction industry\u201d, Deakins says. \u201cThere was no push back at all against these regulations in the construction sector.\u201d<\/p>\n

The main change from the old UK regulations was removing the definition of \u201cwork at height\u201d as being above two metres. As Deakins says: \u201cYou can be just as dead falling 1.9 metres as from 2.1 and since the EU directive did not include the two metres we felt keeping it would not be helpful.\u201d<\/p>\n

Dunkerley says the problem with the revocation bill is it extends to around 60 health and safety-specific regulations with various bearings on construction (see box, below). The Work at Height Regulations create a clear, practical hierarchy and easily understood framework of measures to manage risks, he says.<\/span><\/p>\n

Ross Whalley, a partner at law firm Leigh Day, explains: \u201cThe HSE can bring cases under general health and safety legislation, and we also do under common law negligence and we can point to the regulations and say they show what ought to be done.\u201d But Whalley says the revocation bill \u201crepresents the government\u2019s continued erosion of the high standards of UK health and safety law. It\u2019s an errant employer\u2019s charter\u201d.<\/p>\n

The HSE, as an arm of government, cannot say much about the regulations\u2019 future, confining itself in a statement to: \u201cOur standards of health and safety protections are among the highest in the world and that won\u2019t change.\u201d And a Department for Business and Trade spokesperson would only say: \u201cThis government has no intention of abandoning our strong record on workers\u2019 rights, having raised domestic standards over recent years to make them some of the highest in the world. Through the Retained EU Law Bill, we will be able to take important decisions around which legislation can be kept, and which is in need of reform or removal from our statute books.<\/p>\n

\u201cThroughout, we will maintain the United Kingdom\u2019s high standards of health and safety protection while continuing to reduce burdens for business.\u201d<\/p>\n

With every industry in the country clamouring to either keep or remove various regulations, it may prove hard to get a hearing in Whitehall for concerns about the Work at Height Regulations or other construction safety issues.<\/p>\n

Their accidental loss, though, could lead to many more industry accidents.<\/p>\n

\n

The laws affected by the revocation bill<\/span><\/h3>\n

In addition to Work at Height there are other safety regulations that affect the industry that could find themselves in the firing line of the Retained EU Law (Revocation and Reform) Bill.<\/p>\n

The main group \u2013 known as the \u201csix pack\u201d \u2013 comprises:<\/p>\n

    \n
  • Management of Health and Safety at Work Regulations 1999<\/span><\/li>\n
  • Manual Handling Operations Regulations 1992<\/span><\/li>\n
  • Display Screen Equipment Regulations 1992<\/span><\/li>\n
  • Workplace (Health, Safety and Welfare) Regulations 1992<\/span><\/li>\n
  • Personal Protective Equipment Regulations 2018<\/span><\/li>\n
  • Provision and Use of Work Equipment Regulations 1998<\/span><\/li>\n<\/ul>\n

    Jim Byard, a partner at law firm Weightmans, says loss of the six pack would see UK workers protected only by the Health and Safety at Work Act 1974 and by common law, which is built up over decades by judicial decisions on litigation involving workplace accidents and diseases. \u201cThat is likely to be viewed by most commentators as scant consolation and as leading to an erosion of workplace safety,\u201d Byard says.<\/p>\n

    There are also question marks over the Construction (Design and Management) Regulations 2015, the Control of Substances Hazardous to Health Regulations 2002 and the Control of Asbestos Regulations 2012.<\/p>\n

    Dunkerley says the same concerns about heights apply to the Construction (Design and Management) Regulations, \u201cwhich clearly delineate responsibility
    \nfor health and safety responsibilities during construction projects\u201d. Were those to go, there would also be a
    \nloss of safety standards and increase in workplace injuries, and \u201cthe impact would be seismic and would fundamentally change the scope and extent of workplace compliance regulations\u201d.<\/p>\n

    Thousands of regulations could be caught by this bill, many having a bearing on health and safety, and the industry must be vigilant about which might be affected and how to lobby for their retention.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

    The Work at Height Regulations save lives and are hugely popular in the construction sector. But will moves to \u2018sunset\u2019 all EU laws dilute \u2013 or even destroy \u2013 them? Behind the innocuous-sounding \u2018Retained EU Law (Revocation and Reform) Bill\u2019, lies the prospect of an assault by the government on vital aspects of construction health …<\/p>\n","protected":false},"author":49170,"featured_media":475169,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ep_exclude_from_search":false},"categories":[564,565,581,578],"tags":[],"yoast_head":"\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\t\n\t\n\t\n