Define the meaning of proportionality in the Health and Safety at Work Act

Government should propose secondary legislation under section 50 of HSWA which clarifies the law. The test should not be whether a measure is grossly disproportionate, but instead what is proportionate taking into account a multi-faceted consideration of the level of risk.

This secondary legislation should confirm that whether an action is proportionate to that risk shall be established by reference to:

1. the nature of the hazard concerned;
2. the likelihood of that hazard occurring;
3. the scale of the potential impact in terms of the degree of harm and the numbers of individuals who might reasonably foreseeably be affected;
4. the cost, time and difficulty involved;
5. any relevant policy guidance established by the Secretary of State or the relevant regulator; and
6. whether undertaking the measure might prevent a desirable activity from taking place (either at all, to a particular extent, or in a particular way).

R2P2 should be updated to reflect this secondary legislation and err on the side of proportionality, taking into account the nature of the risk.