What impact has Brexit had on Health and Safety?

Now the UK has left the EU and begins its new relationship outside of the single market, particular rules and procedures have changed for some of Great Britain’s businesses (England, Scotland and Wales). There are some new rules and procedures that must be understood and adhered to regarding businesses that continue to place work equipment and machinery, chemicals and explosives (civil) on the Great Britain market.

Changes in legislation

The Great Repeal Bill dissolves the 1972 European Communities Act (ECA), which gives EU law instant effect in the UK and gives Parliament the power to absorb parts of EU legislation into UK law. This allows changes to be made by secondary legislation to make necessary changes; The Health and Safety (Amendment) (EU Exit) Regulations 2018 as an example.

The Repeal Bill will protect EU legislation on Health and Safety in the UK. However, there may be a divergence from some H&S legislation. This divergence will impact how businesses operate and the requirements for compliance with certain Health and Safety aspects. There has currently been changes to the following:

• Chemicals industry and the safe management of chemicals
• Manufacture and supply of new work equipment
• Placing civil explosives on the market
• Regulating Biocides

The UK’s independent chemicals regulatory framework commenced on 1 January 2021. Businesses which make, sell or distribute chemicals into the UK will need to follow the UK’s new domestic chemicals regulations including UK REACH. The Comply with UK REACH service should be used to:

• Transfer your EU REACH registration into UK REACH (also known as ‘grandfathering’) to continue having access to the UK market
• Submit a new registration for a substance
• Notify that you’re going to continue importing substances from the EU or European Economic Area (EEA) by submitting a Downstream User Import Notification (DUIN)
• Transfer your assets, such as registrations, to another legal entity

What additional action is needed

In addition, businesses will need to need to contact the Health and Safety Executive to ensure that they:

• Validate existing UK-held product and process orientated research and development (PPORDs).
• Provide information on any authorisation matter, including new authorisation application, grandfathering of existing authorisations, and downstream user notifications of authorised use.

UK businesses wishing to supply goods into the single European market, comprising the EU and EEA member states, and Switzerland, must meet EU single market rules for product conformity and in many cases show this by CE marking.

Businesses in Great Britain wanting to supply goods on the Great Britain market must now meet the modified rules for product conformity, and in most cases show this by the new UKCA marking (UK Conformity Assessment Mark). The main amending regulation is the Product Safety and Metrology etc (Amendment etc.) (EU Exit) Regulations 2019, which seeks to provide continuity and maintain the already high standards for safety.

Requirements for active substances

Other amendments have been made to placing explosives(civil) and regulating Biocides.

CE-marked civil explosives that continue to meet EU requirements (where these match UK requirements) can continue to be placed on the Great Britain market until 31 December 2021 for as long as EU and UK requirements remain the same. This includes goods which have been assessed by an EU recognised notified body.

From 1 January 2021, the UK Conformity Assessment (UKCA) mark is the conformity assessment marking for civil explosives being placed on the market in Great Britain and started to replace CE marking for civil explosives placed on the GB market.

Therefore, the UKCA mark, instead of CE marking, must be used on all civil explosives placed on the market from 1 January 2022.

The existing EU Biocidal Products Regulation (EU BPR) has been copied into Great Britain law and amended to suit operational requirements. This means that most aspects of EU BPR will continue in the same way under the new stand-alone regime – the GB Biocidal Products Regulation (GB BPR) which came into force on 31st December 2020.

The HSE have provided guidance on the main differences between EU BPR and GB BPR as well as the things that are unchanged, and on what action you need to take and when you need to do it.

Any future changes that may be made to current regulations will be purely required to ensure the regulations are still applicable within the legal framework when it sits outside of the EU. The amendments will not change the requirements and expectations placed on employers.

What will remain in place?

Your responsibility to protect the health and safety of people affected by your work activities remain.
It is important to remember that the main principles that require employers to assess, avoid and reduce workplace risks to their employees are embedded in current H&S legislation. Therefore, employers should continue to comply with the existing H&S laws.

Although leaving the EU will latterly have an impact on H&S legislation, it is unlikely to be immediate. In the long run the government will be able to remove laws from the statute list, however existing legislation will stay in place and Great Britain will continue to apply its risk-based H&S structure.

The key principles of risk management contained in The Health and Safety at Work etc. Act 1974, The Management of Health and Safety at Work Regulations 1999 and other acts and legislation will continue.

Future considerations

Future amendments to legislation will be designed to ensure current legislation can still be applied after Brexit. They mainly will look at definitions and, where possible, replace EU directives with references to other relevant British legislation. Where that’s not possible, they provide a clear definition within the amended regulation.

To find out how we can help you contact the team on [email protected]. 

Alcumus PSM (People & Safety Management) specialises in human resources (HR) and health and safety (H&S) consulting for small and medium-sized enterprises.

Written by Gary Broadley, Senior Health & Safety Consultant