How does the post-Brexit trade deal impact health & safety?

The EU-UK post-Brexit trade deal was agreed at the end of 2020, concluding nine months of negotiations and resetting the legal framework for conducting business. But what does the deal mean for workplace health & safety?

Many questions have been asked about what will happen to health & safety regulations following the UK's departure from the EU. Now we have left with a deal in place; the immediate picture is a lot clearer. 

Key principles remain the same, and in the short term, it is unlikely that there will be anything other than minor differences between UK health & safety laws and best practices and those in the 27 remaining EU member states. 

The most important act

To understand the potential for longer-term changes post-Brexit, we need to go back to the 1974 UK Health & Safety at Work Act. This was enacted before the UK joined the EU and will remain the backbone of the UK's legal health & safety framework long after the Brexit dust has settled.

The act places a general duty of care on employers to ensure that employees are not exposed to health & safety risks in so far as is reasonably practicable. As the act itself does not prescribe how that is to be achieved, lots of regulations have been implemented to supplement the statute and address specific workplace and industry risks. Some of these descend from European Commission Directives. 

Until the end of 2020, the UK courts were bound to interpret EU derived domestic law according to the wording and purpose of EU law. Now that the Brexit transition period has ended, the UK is no longer obliged to follow EU law. 

Converting EU legislation into UK law

However, to ensure continuity of existing standards and practices, new health & safety regulations came into force when the UK exited the EU. The Health and Safety (Amendment) (EU Exit) Regulations 2018 essentially convert current EU-derived legislation into UK law. The somewhat dramatic title belies that there is nothing in the regulations that will impose new obligations on businesses. 

The supporting Explanatory Memorandum makes this clear: "These Regulations ensure that EU-derived health and safety protections will continue to be available in domestic law after the UK has left the EU…The European Union (Withdrawal) Act 2018 will allow EU-derived legislation to be fixed to ensure it operates properly and effectively once the UK has left the EU. These amendments address deficiencies in health and safety legislation arising from the exit of the UK from the EU."

But that doesn't mean businesses are absolved from having to take any action. They may need to do certain things differently. 

Devil is in the detail

Take, for example, the BG Biocidal Products Regulation (BG BPR), which came into force at the start of this year, displacing the EU Biocidal Products Regulation. Companies with existing substance approvals may need to submit supporting data for their active substances to the HSE since it can no longer access the EU databases and IT systems where this information was held. 

Similarly, UK companies wishing to sell industrial goods both on the domestic market and the EU market will need to satisfy both CE and UKCA marking requirements. 

Although the substance of legal health & safety requirements will not change in the short term, some of the detail has changed, and there is the potential for more significant change in the long term. Over time, the UK and the EU will take diverging paths; certain parts of new UK legislation will not be implemented in the EU and parts of EU law will not be adopted in the UK. 

Trade deals that are still to be negotiated with non-EU countries are a more immediate factor that could bring about divergences between UK and EU health & safety systems. If the government feels the need to deregulate aspects of UK health & safety law to make a deal viable, it may choose to do so.

Less red tape?

In the longer term, we are likely to see the UK's health & safety system simplified, perhaps by cutting red tape to make it easier for businesses to understand and comply with legislation. There will also be scope for using different tools and approaches, such as risk assessments and control measures. 

Without the conflicting interests and meandering approvals processes between the UK and the EU, regulation around new technologies has the potential to move much more quickly. The UK will be in a strong position to exploit this, supporting research & innovation and making sure it is at the cutting edge of health & safety thinking. 

However, those hoping that Brexit would bring an immediate reduction in bureaucracy or relaxation of health & safety obligations might be disappointed. The UK has a world-leading health & safety record that it will not want to jeopardise. If health & safety duties were to be eased, all that would happen would be that standards would slip, and work-related illness and injury would rise. This isn't a change that anyone would welcome.

To an extent, the degree to which health & safety requirements will change in the long term will be determined in the courtrooms. New precedents will be set in case law, and over time, these will pave the way to independent health & safety identified for the UK. Ultimately, though, only time will tell how significant these changes will be.