Bruce Craig: Could HSE gold standard drop to silver or bronze after Brexit?



Bruce Craig
Bruce Craig

In the understandable tsunami of media coverage in relation to the COVID-19 pandemic, it is easy to forget that, as matters stand, the transition period following the UK’s departure from the EU ends in less than six months’ time, writes Bruce Craig.

Currently, the EU and the UK have a global reputation for providing the “gold standard” in health and safety law, and this is particularly so in the highly regulated oil and gas sector, where hard lessons have been learned from 50 years of working in one of the world’s most hostile environments, the North Sea.

So, it is worth considering how the situation may change once the transition period ends on 31 December this year. The backbone of legal protection in the UK for employees is the Health & Safety at Work etc Act 1974 which has stood the test of time for more than 45 years. Certainly, it has been added to and complemented by numerous EU regulations and directives, and all of that law will remain UK domestic law following our EU exit.

Over time however, it is likely that the UK and the EU will go on at least slightly diverging paths – with certain parts of new UK legislation not being implemented in the EU, and other parts of EU law not being followed in the UK.

While in the short term it is likely that there will be no more than minor differences in our HSE laws and those of our 27 (by then) ex-partners, it is important to realise that there will be separate systems, with scope for the emphasis on, for example, risk assessment, control measures and safety standards - inevitably evolving and altering in different directions over time.

For anyone operating a business both in the UK and in the EU this will inevitably throw up challenges – at present exactly the same systems apply, but after the UK leaves, businesses will need to adapt to ensure that they know the requirements in both the UK and in the EU. This may result in additional staffing and professional advice costs, as well as extra time and effort to keep on top of the requirements under both systems.

For example, a business which manufactures subsea valves and pipeline tools in both Romania and Scotland currently has to follow only one set of rules and complete identical paperwork – albeit possibly in different languages. After we leave the EU, it is far more burdensome to ensure that nothing is changing in two trading jurisdictions rather than just one, not to mention the potential extra cost of additional professional advice to ensure the business is in compliance in two regions rather than one large region.

There will inevitably be changes in the composition of our workforce following Brexit and this cuts both ways. On the one hand, with inevitably fewer EU nationals working in the UK, it seems obvious to me that having a greater number of native English speakers will reduce the risk that things will go wrong because of poorer communications, misunderstandings and lack of clarity.

On the other hand, if over time the number of experienced EU nationals working in the UK reduces, resulting in a shortage of skilled labour, they are likely to be replaced by inexperienced UK nationals. The greater the shortage of skilled labour, the higher the risk that things will go wrong, and clearly that may have a negative impact on health and safety outcomes.

The question remains, will our EU departure dilute our gold standard status in health and safety matters and relegate the UK to the silver or bronze podium? It depends on the sector. As the EU increases in size with new member states joining the union, it may be that in certain critical industries such as oil and gas and offshore renewables, we forge ahead and continue to be regarded as the benchmark-setters. Conversely, in other areas where the EU is heavily regulated, for example, in pharmaceutical testing and manufacture, it is possible that the EU will over time steal a march on the UK.

Bruce Craig is a partner and expert in litigation and health and safety at Pinsent Masons



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