Trouble on the horizon: The post-Brexit law cull threatening onsite safety

The Work at Height Regulations save lives and are hugely popular in the construction sector. But will moves to ‘sunset’ all EU laws dilute – or even destroy – them?

Behind the innocuous-sounding ‘Retained EU Law (Revocation and Reform) Bill’, lies the prospect of an assault by the government on vital aspects of construction health and safety.

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 ‘sunset’ 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.

A sunset clause is a provision of a law that will automatically end after a fixed period unless it is extended by law.

As there are some 3,800 regulations across all industries, it seems unlikely that Whitehall – even working flat out – 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’s post-Brexit independence. He has since left office, but his bill remains.

Popular rules

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.

“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”

Rob Candy, Scaffolding Association

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.

The Health and Safety Executive (HSE) says falls from height are the largest cause of fatal injuries 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 – the year before the regulations took force – were 53 and 26. In short, deaths caused by falls from height have halved since the regulations were adopted.

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.

Bill Dunkerley, a regulatory lawyer and associate partner at law firm Pannone Corporate, says the 1974 act is not industry or activity-specific and “by its very nature it imposes generic obligations on employers which are of universal application across sectors”. He adds: “Without 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.”

Scaffolding Association chief executive Rob Candy says: “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.”

Candy fears procurement would become more complicated without the regulations because “if 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 ‘yes’ well great, but what does that mean?”

Suzannah Nichol, chief executive of Build UK, says: “Falls 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.

“Abandoning 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.”

“I hope common sense prevails rather than any misguided ideological policy”

Brian Berry, Federation of Master Builders

Brian Berry, chief executive of the Federation of Master Builders (FMB), agrees: “It 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.” 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. “I hope common sense prevails rather than any misguided ideological policy,” he says.

No burden

Further concern comes from David Mosley, acting managing director at the National Access & Scaffolding Confederation, who says: “Most 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.

“I 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.”

“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”

David Mosley, National Access & Scaffolding Confederation

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

“Without 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.”

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

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 “construction 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”.

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: “Every so often we would be asked to go through EU-derived regulations and remove burdens on business, and we’d go and ask the construction industry what burdens there were and, always, the answer came back there were none.”

The Work at Height Regulations derived from an EU directive, in turn based on older UK legislation, “and I doubt there was much in the new regulations that was novel for the construction industry”, Deakins says. “There was no push back at all against these regulations in the construction sector.”

The main change from the old UK regulations was removing the definition of “work at height” as being above two metres. As Deakins says: “You 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.”

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.

Ross Whalley, a partner at law firm Leigh Day, explains: “The 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.” But Whalley says the revocation bill “represents the government’s continued erosion of the high standards of UK health and safety law. It’s an errant employer’s charter”.

The HSE, as an arm of government, cannot say much about the regulations’ future, confining itself in a statement to: “Our standards of health and safety protections are among the highest in the world and that won’t change.” And a Department for Business and Trade spokesperson would only say: “This government has no intention of abandoning our strong record on workers’ 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.

“Throughout, we will maintain the United Kingdom’s high standards of health and safety protection while continuing to reduce burdens for business.”

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.

Their accidental loss, though, could lead to many more industry accidents.