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April 8, 2014

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Event safety: a perfect storm?

 

The events industry faces a perfect storm of new regulatory approach and a tendency to apply the letter of the law in an industry where safety is often a matter of judgement. Simon Garrett, author of the G-Guide, discusses the issues.

I often begin training by pointing out that few industries (other than those involved in public transport) have the scale of duty of care that we regularly take on in the events industry; often placed on relatively junior shoulders. 

Daily we deal with the exposure of large numbers of people to potentially significant risks. Our key control is to train those with such responsibilities to assess and manage those risks.

I am frequently asked about how to manage the risk of those individuals who seem to wilfully expose themselves and others to serious harm and the extent to which we are liable. The tragic case of Georgia Varley is case in point and appears to set a worrying precedent.

In 2011, Georgia was killed when she fell between the train and the platform as it was leaving the station. She had a blood-alcohol level nearly 3 times the drink-drive limit, had taken the drug mephedrone, was wearing high-heeled shoes and having alighted from the train leaned back against it. The guard, Christopher McGee, failed to fully appreciate the situation and allowed the train to depart.

He was prosecuted for gross negligence manslaughter and sentenced to five years.  Only the jury knows why they convicted him, but on the face of it Mr McGee paid a terrible price for what appears to be a momentary lapse in concentration, rather than an act of wickedness. It serves to remind us just how high the stakes can be in an industry where we constantly battle against, and yet are held responsible for, the actions of others.

Event managers understand that they are accountable for the decisions they make.  This onerous responsibility has always been mitigated to an extent by the fact that enforcement came from a local authority who understood the business.

Since 2012, however the HSE have taken on more direct control of event construction. Added to which draft new regulations have just been released for consultation on a revision of Construction Design Management Regulations (CDM), which will apply to all construction activities including event construction. 

The events industry is now in the process of picking through the regulations before the deadline for comment closes on the 6 June.  Before we dive into the detail of the regulations it is worth pausing so that comment on the regulations can be set in an holistic context taking into account other regulatory changes.

One prevailing view is that this is simply a tidying up of an anomaly whereby construction regulations did not previously apply to event construction. My concern is that the HSE have not articulated a business case on the basis of risk versus cost as to why this is necessary for the events industry much less the exhibitions and conferences sector. 

The key driver is to fall in with Europe although having worked extensively in events across Europe, I have yet to see any evidence of CDM type regulation applying.  In Europe the local authority tends to have far more sway than national regulations.

Many professionals in the events industry have commented that responsible event organisers and other third party contractors already do what is necessary to comply with the proposed revisions to these regulations and this view has some merit. 

Notwithstanding we should consider that we now have a situation where current voluntary compliance is being enshrined in criminal law. Failure to comply with what is now best practice, will become a criminal offence. 

Now also consider the recent introduction of Fee for Intervention (FFI).  Following a change in the law, the HSE has a duty to recover its costs for carrying out its regulatory functions from those found to be ‘in material breach1 of health and safety law’. 

Now that the HSE have taken over responsibility for enforcement of event construction it opens up a new avenue of enforcement action by the HSE during the construction phases of an event. 

The HSE have issued a list of 9 key areas on which they will focus and three of these, use of ladders, work at height, and workplace transport — particularly the separation of work vehicles and pedestrians are a constant battle for event safety staff due to the temporary nature of the site.  As well as unannounced visits, RIDDOR reports are being used as the cue for the HSE to intervene often accompanied by a request to see the company’s own internal investigation report. 

I note that a freedom of information request reported by the SHP2 has revealed a yield of £857,000 to the HSE in the first round up to January 2013, up £100,000 on the previous round. The average invoice was £474.  

Although an unwelcome unbudgeted item, it is unlikely that the costs per se will be an issue for event companies. However it is easy to see how, armed with new CDM Regulations the HSE could come to regard the events industry as a lucrative source of income and thus FFI will encourage HSE enforcement in the event sector. 

The HSE would doubtless refute that charge however anecdotal evidence from the summer festival season last year saw significant increase in HSE’s activity and the issuing of some Prohibition Notices that might previously have resulted in a simple verbal caution.

As a health and safety professional I recognise the significant risks associated with events and the need for regulatory control. I am also aware, however, of a long history of new health and safety laws having unforeseen and unintended consequences.  One of the early promises of this government was a bonfire of overly restrictive and burdensome regulations on business in general yet in the events industry precisely the reverse seems to be happening. 

We seem to be facing a perfect storm of a new regulator in the form of the HSE, armed with new and potentially quite prescriptive regulations with a financial incentive to apply the letter of the law in an industry where safety is often a matter of judgement. 

The events industry has a core of highly qualified and competent event safety management professionals who have to use their discretion and judgement in the fast moving and complex world of events.  If that discretion is crushed by heavy handed regulation then we could end up with a tick box approach that may unwittingly lead to more risk as event safety managers lose the instinctive approach that currently works very well.

There is still much to play for and informed and robust engagement in the consultation period for the new CDM regulations will influence the outcome.  If the events industry fails to grasp the nettle we will only have ourselves to blame if the resulting regulation does not suit us.

 

.     According to the HSE’s FFI guidelines, a material breach is defined as a contravention of health and safety law that requires an inspector to issue a written notice to the duty-holder.  This may be a notification of a contravention, an Improvement or Prohibition Notice or a prosecution, and must include the law to which the inspector’s opinion relates; the reasons for that opinion; and the notification that a fee is payable to the HSE.

.     ‘Readiness to query FFI costs, but fairness doubts remain’ — July 2013

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