September 3, 2019

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April 2019 legislation update Q&A

Another chance to revisit our most recent legislation webinar, in which Simon Joyston-Bechal, Director, Turnstone Law, and Sarah Valentine, Senior Associate EHS, Eversheds Sutherland, discussed April’s legislation updates.

Topics covered included:

  • Sentencing Council evaluation of impact of sentencing guidelines – what have we learnt?
  • Is there a duty to warn in health & safety criminal law?
  • Can you delegate health & safety criminal law duties to contractors?
  • The Environment Agency’s response to the Compliance Classification Scheme guidance consultation.
  • The upcoming changes to PPE regulations.
  • Recent Court of Appeal decisions:
    • Using an expert on likelihood of harm.
    • Whether group company turnover is taken into account for sentencing.
  • Can you reorganise your corporate structure to avoid big health & safety fines?

Click here to listen back to the April Legislation Update webinar in full.

Below, Simon and Sarah answer some listener questions which they were not able to answer during the recording:

How much weight is given to the quality of Risk Assessments during a criminal prosecution?

simon-joyston-bechalSimon Joyston-Bechal (SJB): “H&S criminal prosecution usually involves the issue of whether the defendant has done everything that was reasonably practicable to protect safety. In many cases, conducting a suitable and sufficient risk assessment is a part of that expectation, so the prosecution can be defended if the defendant can show that they did all that was reasonably practicable by way of creating a suitable and sufficient risk assessment.

“It is helpful to think of risk assessment in its widest sense; not just the document but whether everything reasonably practicable was done to assess a risk and guard against it. That means it is often a central factor in a prosecution.”

Should volunteers be treated as employees from a health & safety point of view?

(SJB): “Assuming your organisation or its operational part has at least one employee, then the duties under HSWA sections 2 (employees) and 3 (others affected by your undertaking) are engaged.

“The section 3 duty applies to volunteers and is almost identical in scope to the duty to employees. However, it could be that the particular features of your volunteers (e.g. age, difficulty to get them to follow instructions or training) means the duties are higher. This is a particular concern for charities, which need specific advice.

“Finally, if your organisation has no employees at all throughout its structure or group, then section 4 HSWA is engaged; and there are some loopholes in section 4 worth exploring on a case by case basis.”

When working as subcontractors on multiple sites, is there a clear dividing line of responsibilities, or will this depend on the number of employees onsite at a given time or the length of the subcontract?

(SJB): “Your duty is to do whatever is reasonably practicable for the safety of staff and others. The answer to the question ‘is a particular measure reasonably practicable’ will depend upon all the circumstances; this will include contract provisions, information given by the principal, relative levels of specialisation as between subcontractor and principal, the number of employees specified and the length of the subcontract.

“But watch out if you consider that the principal has specified insufficient budget or manpower to do the job safely, in which case both the principal and the subcontractor risk prosecution.”

Please speculate on the reasons behind 20% drop in ratios of fines to other outcomes.

(SJB): “You have picked up an interesting point, although it is an observation over the period from 2011 to 2017 and most of that change happened before the introduction of the sentencing guidelines in February 2016.

“It seems clear that for individuals convicted of HSWA offences, there has been a trend towards fines being replaced by suspended prison sentences. This suggests judges have become more aware of the seriousness of these offences, but I expect there are more factors involved.”

Is the duty to warn increased for the employed health & safety advisors specifically?

(SJB): “When the health and safety professional becomes aware of a past issue that engages a duty to warn, then the expected behaviour by that professional will take into account their training, qualifications and workplace responsibilities. This means they can be put in a difficult position if management decide not to warn.

“The first answer is that the professional should record their concerns in writing addressed to management as appropriate. The harder question would be whether they should become a whistle-blower outside the organisation, potentially exposing them to allegations of breach of confidentiality. This needs careful consideration and advice, but it may be better to give that advice to management.”

What advice do you have regarding supplier chains and HSSE responsibilities?

(SJB): “You need to do everything reasonably practicable to keep control of conduct by those in your supply chain. Many organisations stipulate in the contract that a subcontractor cannot further sub-contract to other parties without prior approval. Keeping track is nonetheless easier said than done, particularly in the gig economy, but it is a common problem and shouldn’t be ignored.”

If a contractor is working on your behalf before you have taken over a site, can the responsibility be delegated under the T&C’s between you and the contractor?

(SJB): “T&Cs are just one part of successful delegation. In order to delegate health & safety criminal law duties to a contractor, you need to do everything reasonably practicable by way of selecting, providing information/instruction/training, monitoring and reviewing the contractor. Even then, HSE may regard some CDM duties as non-delegable but I would be pleased to argue otherwise.”

Does liability become diluted by having a ‘shell’ holding company with multiple registered companies held by it at a subservient level covering individual business activities within the overall portfolio of the holding companies?

(SJB): “The liability will attach to the subsidiary where the deficient measures happened but, yes, there could be a dilution or obstacle for the prosecutor to find sufficiently grave wrongdoing in one corporate in some circumstances; and the turnover of the defendant company may be much smaller, which could reduce the fine in the right circumstances.”

Individual sentencing and fines, is this a board room level or does this include employees at all levels?

(SJB): “There can be prosecution under the HSWA for any employee or director, but also for volunteers and shareholders if their act or omission causes the organisation to commit an offence.”

In relation to the sentencing guidelines is there a graduation scale for a small medium and large businesses and what is the scale?

(SJB): “The turnover boundaries for different sentencing tables in health & safety offences are: Micro < £2m; Small < £10m; Medium < £50m; Large £50m and over; Very Large ‘turnover very greatly exceeds £50m’.”

What guidelines would be used when working on Alliances or Joint ventures when you have multiple partners?

(SJB): “In England and Wales, corporate entities are prosecuted and not unincorporated joint ventures or alliances. So, each joint venture partner can be prosecuted in their own right, depending upon whether the failing was on their part.

“For example, in many cases one joint venture partner or its seconded employees are looking after health and safety, so that would be the one to be prosecuted. Then the turnover of the defendant company is generally what counts. This requires individual advice in each case.”

Are there any significant prosecutions/appeals involving NHS organisations that can be cited in the presentation?

Sarah ValentineSarah Valentine (SV): “Yes:

“HSE v Oxleas NHS Foundation Trust (Dec 2018) – Two nurses working in the kitchen of the Bracton Centre medium secure unit were stabbed multiple times by a patient. Both nurses sustained serious injuries.

  • An HSE investigation concluded that there was no patient specific risk assessment to identify the risks posed prior admission of patients to the ward, despite the facility routinely receiving high-risk patients.
  • The investigation also identified that the use of knives on an acute ward was fundamentally unsafe and there were no control measures in place regarding kitchen knives.
  • Oxleas NHS Foundation Trust pleaded guilty to a charge under Sections 2(1) and 3(1) of the Health and Safety at Work Etc Act 1974. The Trust as fined £300k.

“Shropshire NHS Trust – ongoing investigation by the HSE into asbestos exposure in 2012. HSE confirmed they intend to prosecute but the hearing date is to be confirmed.”

Is there likely to be any further guidance on the recent Safety Alert from the HSE in relation to mild steel welding fume?

(SV): “Yes, guidance is expected but there is no timeline as to when it will be published at the moment. The HSE are also developing an intervention plan. The HSE have stated that the current guidance is out of date and following new evidence it will be updated.

“There are initial actions to be taken listed in the Safety Alert which provide basic guidance in the meantime. For example:

  • Ensure any exposure to welding fumes is adequately controlled using engineering controls (typically LEV or RPE);
  • Make sure suitable controls are provided for all welding activities, irrelevant of duration. This includes welding outdoors (RPE required);
  • Where engineering controls alone cannot control exposure, then adequate and suitable RPE should be provided to control risk from any residual fumes; and
  • Make sure all engineering controls are correctly used, suitably maintained and are subject to thorough examination and test where required.

“Further details on the HSE’s enforcement expectation for welding can be found on the safety notice.

“Guidance is also available in the BOHS Welding Fume Control Selector Tool (from the Breathe Freely website). You can select mild steel specifically and it will provide a PDF of expert guidance the appropriate controls to be taken, depending on the length of time the steel is welded.”

What, if any, are the proposed changes to the CDM Regulation due for review in 2020?

(SV): “There are no proposals available yet. All proposals for the CDM review in 2020 at the moment are purely speculative.

“The Construction Industry Council and the Association for Project Safety (APS) are hosting an anonymous survey to gather feedback from across the industry ahead of the government consultation.

“It is anticipated recommendations from Dame Judith Hackitt’s report will be incorporated into the review process.”

Can the fine be considered a company expense?

(SV): “No. Any fines or penalties cannot be reclaimed as an expense. Fines are punitive by nature, so should not be deemed as a necessary part of the business i.e. they are not incurred as business expenditure or incurred wholly and exclusively for the purposes of trade (CIR v Alexander von Glehn Ltd [1920]).

“Similarly, the amount of a fine cannot be included in any claim for tax relief. HMRC provide further guidance in their business income manual BIM42515.

“However, any fees incurred for intervention (FFI) are deductible. They are outside the scope of VAT, but HMRC have confirmed that where a trader incurs a liability from a regulatory body that is broadly intended to cover the regulator’s costs of performing its duties in relation to the trading activities, so such costs will normally be allowable even where the trader has committed a breach of regulations.”

Could you go over the requirements for those that supply PPE for their employees?

(SV): “Generally and in accordance with the Personal Protective Equipment Regulations 2002 and Personal Protective Equipment at Work Regulations 1992 require, PPE should:

  • be CE marked
  • properly assessed before use to make sure it is fit for purpose;
  • maintained and stored properly;
  • provided with instructions on how to use it safely;
  • used correctly by employees.”

“But it is correct to keep the technical details if you are a distributor or importer of PPE. Under the new regulations:

  • There will be a requirement for manufacturers to supply a declaration of conformity with every item of PPE that is placed on the market, or at least providing a link to where it can be obtained.
  • All PPE must be issued with this by the manufacturer, and distributors/importers now need to have a copy of this on file
  • This should be kept for 10 years after the PPE has been placed on the market.”

PPE, work instructions for PPE supplied to employees. If just PPE suppliers’ instructions are supplied to employees would this be enough on its own?

(SV): “No, you must ensure employees are trained to use it properly and know how to detect and report any faults. Regulation 9 of The Personal Protective Equipment at Work Regulations 1992 requires that employers to enable the employee to know:

  • The risk or risks which the personal protective equipment will avoid or limit;
  • The purpose for which and the manner in which personal protective equipment is to be used; and
  • Any action to be taken by the employee to ensure that the personal protective equipment remains in an efficient state, in efficient working order and in good repair.”

Will the HSE still attach an electronic copy of the F2508 to an online submission?

(SV): “No. When form F2508 is submitted notifiers will no longer receive an email copy. However, when you submit the form online you will see receive the RIDDOR reference number. At this point the ‘Download PDF’ button is visible which will allow you to save and print a copy of the form.”

With regards welding and RPE, is face fit testing mandatory; what is the current status with people with beards; do the face fi testers have to be to a certain competency level?

(SV): “Face fit testing is required depending in the type of RPE equipment, but it’s not always mandatory. It depends on the equipment models, but for example if it is tight fitting such as a twin-filter respirator with welding visor, it would require face-fit.

“For people with beards, as an employer you cannot demand they are cleanly shaven to allow for tight fitting RPE only. RPE is available in different sizes or as a hood version to allow for facial hair. You could also explore loose fitting RPE that would not require a face fit test.

“In relation to competency level – RPE fit testing should be conducted by a competent person. Competence can be demonstrated through achieving accreditation under the Fit2Fit RPE Fit Test Providers’ Accreditation scheme. This scheme has been developed by the British Safety Industry Federation (BSIF) together with industry stakeholders and is supported by HSE. The scheme is not compulsory and you are free to take other action to comply with the law.

“If LEV is in place, RPE could still be needed depending on the materials being welded, for example if LEV is unable to control fume capture then RPE is also required. This would be if Welding or hot cutting materials containing cadmium, or painted with lead or chromate paints where the coating can’t be removed. HSE guidance 153 provides further examples of when both extraction and RPE should be considered.”

Is this in relation to all welding or steel welding? Does it cover aluminium?

(SV): “Different types of RPE is available for a variety of welding and each situation should consider all factors. Generally for aluminium welding only (with no mix of other materials) or high volume production welding using TIG on aluminium – extraction is only required. For a mixture of materials, the HSE guidance 153 mentioned above provides a selection of different scenarios where both RPE and LEV may be necessary.”

Click here to listen back to the April Legislation Update webinar in full.

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