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November 4, 2015

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Quiz – Health and Safety Legislation 2015

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2015 has been a busy year for health and safety legislative changes. Among them, the CDM Regulations overhaul in April and changes to the Control of Major Accident Hazards (COMAH) Regulations 2015, which came into effect on 1 June 2015.

These regulations may affect you and your business and you may need to implement changes, update your workforce and revise relevant documentation and so it is prudent to be on top of the changes and what they mean.

In addition, guidelines for sentencing health and safety, corporate manslaughter and food safety and hygiene offences have been published by the Sentencing Council. The consultation period ended earlier this year, the final version was published this week and the guidelines will come into force in early 2016. The review of guidelines was ‘taking place in part due to concerns that some sentences imposed for these offences have been too low, particularly in relation to large organisations convicted of the most serious health and safety and food safety offences’ [Sentencing Council].

This quiz is based on Barbour’s recent Legislation Update for October 2015 and Beyond, on information available in the Barbour resources under ‘CDM and Construction Site Safety’ and on the Barbour service, using the search term ‘COMAH’, and on the Sentencing Council’s consultation document.

By answering the questions below, practitioners can award themselves CPD credits. One, two or three credits can be awarded, depending on what has been learnt – exactly how many you award yourself is up to you, once you have reflected and taken part in the quiz


Please note:
  There may be more than one correct answer to a question, and further reading may be required to correctly answer the questions
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1. Deregulation of the self-employed

A key recommendation made by Professor Löfstedt in his report “Reclaiming health and safety for all: An independent review of health and safety regulation,” was to exempt from health and safety law:

 
Answer: A

For health and safety law purposes, ‘self-employed’ means that you do not work under a contract of employment and work only for yourself. If you’re self-employed and employ others the law applies to you. You may be self-employed for tax purposes, but this may not be so for health and safety.

A ‘risk to the health and safety of others’ is the likelihood of someone else being harmed or injured (eg members of the public, clients, contractors etc) as a consequence of your work activity.
2. Smoke Free Vehicles

The Smoke-free (Private Vehicles) Regulations 2015 [England and Wales] and the Smoke-free Premises etc (Wales) (Amendment) Regulations 2015 came into force on 1 October 2015 and aim to protect under 18’s from exposure to environmental tobacco smoke when travelling in private vehicles.

Under these regulations, what will change?
Answer: A, C

B is incorrect because, under the Regulations, it is the driver’s responsibility to prevent smoking in a private vehicle with someone under the age of 18 present – not another passenger’s.

The Regulations followed findings that second-hand smoke in cars reached 100 times above safety guidelines. Children are more susceptible to the effects of second-hand smoke, which is 80% invisible. Children breathe more frequently than adults and their respiratory and immune systems are still developing.

The regulations introduce a fixed penalty notice of £50 for each offence.
3. Smoke alarms

Under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015, private rented sector landlords are required to ensure that how many smoke alarms are fitted to every storey of their rented property.
Answer: B

At least one smoke alarm must be installed on every storey of the rented property under these regulations, which also call for a carbon monoxide alarm to be installed in any room which contains a solid fuel burning appliance.

These regulations also require landlords to ensure that such alarms are in proper working order at the start of each new tenancy.
4. ISO 45001

A new ISO standard, ISO 45001, on occupational health and safety management system requirements is to replace ISO 18001. The standard will be aligned with ISO 9004:2009 on making a quality management system more efficient and effective. True or False?
Answer: False

The new ISO 45001 will be aligned with ISO 9001 (Quality Management) and ISO 14001 (Environmental Management).

ISO 45001 will help organisations by providing a framework to improve employee safety, reduce workplace risks and create better, safer working conditions, all over the world. It is intended for use by any organization, regardless of its size or the nature of its work, and can be integrated into other health and safety programmes such as worker wellness and wellbeing. It also addresses many, if not all, legal requirements in this area.

The standard is set to be published in October 2016.
5. CDM Scope

A Principal Contractor and Principal Designer have to be appointed by a commercial client:
Answer: A

For all projects where there is more than one contractor a Principal Designer, who is responsible for ensuring the pre-construction part of the project is adequately coordinated, assisting in preparing the pre-construction information and ensuring that designers comply with their design duties and prepare the health and safety file, must be appointed along with a Principal Contractor to plan, manage and co-ordinate the work. You should involve them at an early stage of the project.

If you have construction or building work carried out, the client for the work (normally your company or organisation for which the work is being undertaken) will have legal duties under CDM. A domestic client having work done on their own home does not have the same legal duties under CDM as a commercial client – these are transferred to the contractor undertaking the work or in some cases to an appointed Principal Designer.
6. CDM Legal Framework

One of the very major changes to the CDM Regulations is that the 2015 Regulations will apply in full as soon as more than one contractor is involved irrespective of the scale or extent of the work. True or False?
Answer: True

The objective of CDM is to provide a legal framework covering design, commissioning of work, and its planning and execution, which applies to all construction work likely to pose significant risks to workers and other parties. The underlying aim is to encourage information flow from the original conception, through the design and construction process, to the final users of the building - ultimately to minimise health and safety risks to all concerned.
7. COMAH

While the main COMAH duties remain unchanged, for the first time, lower tier operators will have to provide public information about their site and its hazards. True or False?
Answer: True

The Control of Major Accident Hazards (COMAH) Regulations 2015 came into effect on 1 June 2015. Under the Regulations, both top tier (now referred to as upper tier) and lower tier operators will need to provide public information electronically and keep it up to date.

The COMAH Regulations aim to ensure that businesses take all necessary steps to prevent major accidents involving dangerous substances and to limit the consequences to people and the environment of any major accidents which do occur.

Organisations subject to COMAH are those which manufacture or store dangerous chemicals (including petrochemicals, pharmaceuticals and agrochemicals) and explosives in excess of threshold quantities specified in the Regulations.

From 1 June 2015, operators of ‘existing’ COMAH establishments that remain in scope of the new regulations will need to submit a new COMAH notification.
Q8 – Sentencing guidelines: Individuals

Individuals may receive custodial sentences and community orders as well as fines. However, fines are frequently the disposal used for individuals in health and safety and food safety and hygiene offences. In 2013, in 61% of health and safety cases and in 89% of food safety and hygiene cases committed by individuals, the sentencing outcome was a fine.

True or False?
Answer: True

The Sentencing Council’s consultation document notes that an individual will be liable for health and safety offences if they are the duty holder. An individual may also be an ‘employer’, a sole trader or an individual partner in a partnership. Additionally, the duty extends to a ‘self-employed’ person.

An example of an offence given by the Council that individuals are commonly prosecuted for relates to completing illegal gas work, which may constitute breaches of provisions in the Gas Safety (Installation and Use) Regulations 1998.

As well as being the direct duty holder, an individual may be liable for offences by virtue of section 36 and section 37 of the HSWA. Section 36 creates secondary liability for a person whose act or default causes another to commit a health and safety offence, meaning that they are charged with the primary offence.

Under section 37, where an offence committed by an organisation is proved to have been committed with the consent, connivance of, or neglect of a director, manager or other similar officer of the organisation, then that individual shall be guilty of the offence committed by the organisation. In addition, the guideline for individuals includes the offence of breaching the general duty on employees under section 7 of the HSWA.

This is the duty to take reasonable care for the health and safety of themselves and others who may be affected by their actions or omissions, and to co-operate with duties and requirements imposed on their employer.
9. Sentencing guidelines: Assessing the means of organisations

The Sentencing Council says that the court should ‘examine the financial circumstances of the offender in the round to assess the economic realities of the organisation and the most efficacious way of giving effect to the purposes of sentencing’.

The Council has included which of the following factors that the court may wish to consider in doing this:
Answer: A, B,C

The Council has also highlighted that “in considering the ability of the offending organisation to pay any financial penalty, the court can take into account the power to allow time for payment or to order that the amount be paid in installments, if necessary, over a number of years”.
10. Sentencing guidelines: Corporate Manslaughter

According to the Sentencing Council’s consultation document, how many Corporate Manslaughter cases in England and Wales have been sentenced since the Corporate Manslaughter and Homicide Act 2007 came into force?
Answer: Four

The offence of corporate manslaughter is a relatively recent offence, enacted in the Corporate Manslaughter and Corporate Homicide Act 2007. Prior to the creation of this offence, it was possible for organisations to be found guilty of a range of criminal offences including gross negligence manslaughter. However, this required proving that a senior figure who could be said to embody the organisation (also known as the ‘controlling mind’) had the knowledge and fault required for a conviction. This ‘identification principle’ made it very difficult to mount a successful prosecution for manslaughter against a corporate entity, especially against large organisations with many levels of seniority and lines of accountability.

The offence of corporate manslaughter created by the 2007 Act is focussed on the worst instances of management failures causing death. Although the more serious offence, it is closely related to health and safety cases causing death.

An organisation will be guilty of the offence of corporate manslaughter if the way in which it managed its activities both caused a person’s death and was a gross breach of a duty of care that the organisation owed to the deceased. It is further required that a substantial element of the breach was the way in which the organisation’s activities are managed or organised by its senior management.

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