The Health & Safety at Work etc Act 1974 and patch tests

This is what section 3 of the Health & Safety at Work etc Act 1974 says about your duties to the public.

3 General duties of employers and self-employed to persons other than their employees.

(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2) It shall be the duty of every self-employed person who conducts an undertaking of a prescribed description to conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

For employers the legal requirement seems clear enough: ‘Don’t expose your customers and the public to risk.’

That general obligation also used to apply to the self-employed. But the Deregulation Act 2015 amended section 3 (2) of the 1974 Act removed this blanket obligation from applying to self-employed persons. That was an attempt to reduce over-regulation, to sweep away excessive administrative obligations. The 2015 act changed this so that the duty on self-employed persons only related to self-employed persons working in certain specific industries called ‘prescribed’ undertakings. Those industries were agriculture, work with asbestos, construction, gas, genetically modified organisms, and railways – not beauty salons.

Sounds great!  Except that there is a provision in regulations issued under the Act which says that an undertaking is prescribed for the purposes of section 3 (2) ‘if it involves the carrying out of an activity… which may pose a risk to the health and safety of another person (other than the person carrying it out or their employees)’.

In other words, we are right back where we started with self-employed therapists having the same obligation as they had before: ‘Don’t expose your customers and the public to risk.’

The health and safety argument would run that since beauty products can cause allergic reactions, therefore they are undertakings covered by section 3 (2). That means the self-employed person has an obligation to take any necessary steps, just as an employer must do.

By the way, all this legal wording seems to carefully exclude employees from protection, but that is because it is covered elsewhere. Section 2 (1) imposes a duty on every employer ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’.

So section 3 probably imposes an obligation on salons and self-employed practitioners to carry out patch tests on customers. This is not just a question of risking a legal action from someone who has an allergic reaction and suffers some side effects. There is also a risk of prosecution for breach of the criminal law. Given the relatively minor effects of an allergic reaction to eyelash glue, my personal opinion is that it is unlikely that the Health and Safety Executive is lining up parties of policeman to raid beauty salons – they probably have bigger fish to fry – but there is a risk, and councils and regulatory bodies do prosecute small businesses for their compliance failures from time to time.

In my personal opinion, it is unfair to expect salons and practitioners to carry out patch tests on customers for the very small chance of an allergic reaction. If you go and see a medical practitioner or have to have tests of some kind, they will ask you if you are allergic to penicillin. They don’t then carry out a patch test to actually discover it themselves. They just take your word for it. You may never have had penicillin before, so the treatment you are about to get might actually cause the allergic reaction. The results could be very serious – a lot more serious, I imagine, than the relatively mild allergic reaction to cyanoacrylate in glue. And yet medical practitioners aren’t apparently required to check for any allergic reaction before proceeding.

By the way, if you’re thinking that you can add to your customer record a statement that the customer waives their rights, or consents to the risk of having the treatment without having a patch test first, think again. Even if the client actually signs that, it is legally meaningless. You aren’t allowed to get people to sign away their rights in that way.

The biggest risk isn’t actually the cost of a legal action from a customer, it is the effect on your insurance. You need to have insurance to operate a business, especially a full-scale salon, and if you fail to take steps that the insurers require, such as doing patch tests, then your insurance may simply be invalid – even over a small claim. The insurers might then refuse to give you insurance in the future.

Different training companies suggest different procedures. Some say you should apply two lash extensions on the outer edges of the eyes, others say you should put a tiny amount of glue behind the ear. The skin one sounds dodgy to me. The glue is never meant to come in contact with skin. That’s why it is applied 1 mm from the hair follicle, so testing whether putting it directly on the skin causes a reaction isn’t strictly to the point. It is possible that the glue you put on the skin will give a false positive reaction simply because it’s a direct application to the skin, which would never happen in the correct application of eyelash extensions.

What are really important are the manufacturers’ instructions, and your insurers’ instructions. You shouldn’t really be going wrong if you carry out a patch test precisely in accordance with the instructions from the manufacturer for that particular glue. All glues are a bit different, so different risk levels and tests may apply. But irrespective of the actual risks concerned, you certainly have to comply with your insurers’ requirements or your policy will be invalidated. So even if the insurer is being ridiculously overcautious, you still have to do what they require or you risk becoming uninsured.