Professional Documents
Culture Documents
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REFLECTING ON A YEAR OF
SIGNIFICANT CHANGE
CONTENTS
P.2 Foreword, Gary Tyne
P.4 Introduction, Steffan Groch
P.6 Legislation update for April 2016 and beyond, Lauren Applebey
PPE Directive
P.11 New PPE regulations what you need to know, Jim Lythgow, Specsavers
P.12 Not all PPE is created equal, Neil Hewitt
CDM 2015
P.15 One year on - CDM 2015, Fiona Khosla
P.18 Moving forward on CDM 2015, John Carpenter
P.22 CDM and the client: Planning, pre-empting and being proactive,
Elliott Lockyer
P.25 The skills, knowledge and experience required by a Principal Designer,
Tim Sims
Sentencing guidelines
P.27 Sentencing guidelines: Definitive Council, Michael Caplan QC
P.29 The 2016 health and safety sentencing guidelines: how have they changed
for companies? Kizzy Augustin
P.32 The most dramatic change in health and safety enforcement since 1974,
Simon Joyston-Bechal
P.35 Sentencing guidelines: the legal view, Paul Verrico
P.38 How businesses can improve health and safety in the face of new
regulations, Mary Clarke
P.40 Sentencing guidelines: Will they make the workplace safer? Tim Hill
P.42 The new sentencing guidelines: is your board prepared?
Simon Joyston-Bechal
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FOREWORD
Gary
Tyne
Engineering manager
Europe,
ARMS Reliability
ARMS Reliability provides solutions that enable you to get the most out of your
RCA program. We have root cause analysis experts who can assist in facilitating
investigations as well as guiding you through RCA program development, and
reviewing and analysing the health of your program to ensure it is meeting your
business needs.
Over the last 20 years we have provided training and solutions to companies
across a wide range of industries that are designed to help companies better understand their incidents and identify effective solutions that prevent recurrence.
Gary Tyne is Engineering Manager Europe for ARMS Reliability and Certified
Apollo Root Cause Analysis methodology instructor.
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INTRODUCTION
Steffan
Groch
Head of regulatory,
DWF LLP and chair of
UK Health and Safety
Lawyers Association
2015 - 2016 has been a landmark year for health and safety. The defining
change is the recent introduction of the Definitive Sentencing Guidelines for
Health and Safety Offences, Corporate Manslaughter and Food Safety and
Hygiene Offences. As of 1 February 2016 there has been a sea change in
sentencing as turnover and risk now determine sentence, rather than causation of
actual harm.
In 2011, Professor Lftstedts seminal review of health and safety was welcomed
as heralding a new era of business friendly regulation. Some of the recent
changes appear to support this for example the sentencing guidelines will be
welcomed in some quarters for appearing to promote certainty. However, from
a legal perspective there are troubling indicators - the potential for draconian
enforcement has increased and with it the potential for damage to the relationship
between business and regulators.
The new guidelines provide for sentences based on turnover, harm risked and
the likelihood of harm but uncertainties remain for example, there are a vast
number of risks where the risk of harm could be death an uneven paving slab
for instance. Similarly the risk of harm could vary hugely - a defendant may say
that the absence of incidents indicates a low risk, a prosecutor might say the
converse that this simply illustrates the numbers potentially exposed to the risk!
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Looking back
2015 into the start of 2016 was a huge period for health and safety legislation
with the move to CDM 2015 and the changes to the sentencing guidelines for
health and safety offences, corporate manslaughter and food safety offences.
CDM 2015 saw a simplification of the construction regulations and the role of
CDMC replaced with principal designers. Over one year on and it is hard to say
exactly how the construction sector has taken to the new legislation, or if one of
the main aims (to reduce the amount of paperwork generated) has been met.
This may change when the first prosecution under CDM 2015 takes place.
The other significant change has been the introduction of the new sentencing
guidelines for health and safety offences, corporate manslaughter and food
safety offences which came into force on 1 February 2016 and apply to any case
sentenced in courts in England and Wales after that date.
Described as the most dramatic change to health and safety legislation since the
introduction of the Health and Safety at Work etc. Act 1974, the guidelines have
been introduced to give courts comprehensive guidance for these offences. They
introduce a structured nine step approach that the Court should follow, so as to
calculate sentences. This involves plugging culpability and harm factors into a
series of tables to reach recommended starting point fines, as well as ranges of
fines above and below the starting points.
Upcoming changes
March 2016
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The governments
trade union bill
threatens the
basic right to
strike
Permitting the use of agency workers to cover striking staff.
A doubling of the minimum notice of strike action to two weeks.
A requirement for pickets to be supervised by a named official.
What the Government says:
The government is introducing fundamental reforms to modernise trade union law.
Reforms introduced by the Trade Union Bill will:
Ensure that strike action only ever takes place on the basis of clear and repr
sentative mandates, through new thresholds that strike ballots must meet.
Improve transparency and oversight of trade unions.
Require reasonable notice of strike action, and give employers greater chance
to prepare for industrial action and put in place contingency plans.
What the unions say:
The governments trade union bill threatens the basic right to strike.
Employers will be able to break strikes by bringing in agency workers to cover
for strikers. This could have big safety implications, lead to worse public
services, and will undermine the right to strike. The bill also proposes huge
restrictions on peaceful picketing and protests. Picket supervisors will have to
give their names to the police raising concerns about blacklisting and will
need to carry a letter of approval their union.
Other proposals in the bill including powers to restrict the ability of unions to
recruit and represent members in the public sector, restrictions on how unions
use their resources and lots more unnecessary red tape.
All of it taken together fundamentally undermines the rights for unions to
organise, negotiate and strike in defence of their members at work.
Proposed HSE Innovation Plan
The government, as part of its productivity plan, has asked all departments to
work with their regulators to publish an Innovation Plan by March 2016. The aim
of the plan is to find out whether the UK regulatory framework is set up to support
innovation and disruptive business models. Regulators have been asked to
consider three specific issues:
How legislation and enforcement frameworks could adapt to new technologies
and disruptive business models to encourage growth.
An assessment of how new technology is likely to shape the sectors being
regulated.
Actions for how regulators could better utilise new technologies to generate
efficiency savings and reduce burdens on business.
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April 2016
Changes to PPE Regulations - transition period 2015 - 2018
The PPE directive was one of the first new approach directives, which came into
effect on 1 January 1993.
Now over 20 years old, the directive is being updated to reflect current
technologies and processes for developing and bringing PPE to the market.
The changes mean the old Directive will be re-implemented as a regulation in
2018 rather than remain in its current status, and the new regulation will not have
to be transposed into each Member States national law.
The main changes taking place include:
Moving hearing protection from Category 2 to Category 3 PPE
Changing life jackets from Category 2 to Category 3 PPE
Issuing a Declaration of Conformity with each PPE or at least a link to where it
can be obtained
Possibly covering domestic PPE (e.g. oven gloves)
Bringing the regulation in line with similar European requirements, such as the
Medical Devices Directive by suggesting a five-year certificate validity.
The British Standards Institute has a whitepaper detailing the history and the
proposed scope of the regulation, obligations and timelines.
National Minimum Wage Amendment Regulations 2016
The new National Living Wage is introduced as the new hourly rate for adults aged
25 and over. The new minimum wages from 1 April 2016 is:
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The Regulations will impact not only employees, but also employers. Regulation 2
amends the National Minimum Wage Act 1998 by increasing the financial penalty
payable by employers who underpay the National Minimum Wage from 100% to
200% of the underpayment and no doubt will have an effect on dismissals.
Veteran mesothelioma payments
On 16 December 2015, the MOD changed the rules to allow veterans diagnosed
with mesothelioma on or after that date to have the choice between a one-off, taxfree lump sum or regular, smaller payments. The department has now extended
the eligibility for the lump sums to those diagnosed before that date. Legislative
provisions will be made to enable lump sums to be paid from 11 April 2016.
Annual slavery and human trafficking statements
Under the Modern Slavery Act 2015 (Transparency in Supply Chains) Regulations
2015 there is a duty for organisations with a turnover of at least 36 million to
produce an annual slavery and human trafficking statement, which should set out
the steps that the employer has taken to ensure that no slavery exists within its
organisation or supply chains.
Transparency in Supply Chains Practical Guide offers guidance on how the
Government expects organisations to develop a credible and accurate statement
each year and sets out what must be included in these statements.
Those businesses whose financial year-end is between 29 October 2015 and 30
March 2016 will not be required to publish a statement for the current financial
year. Businesses with a year-end of 31 March 2016 will be the first businesses
required to publish a statement. Further information is available here.
Mesothelioma (Amendment) (No. 2) Bill 2015-16
This Bill is expected to have its second reading debate on Friday 22 April 2016.
Other changes for April include:
The Electromagnetic Compatibility Regulations: Draft 2016
Lifts Regulations: Draft 2016
The Damages for Bereavement (Variation of Sum) (Northern Ireland) Order
2016
Transfer of functions, fire and rescue services Order 2016
Employment rights, increase of limits Order 2016
Health and safety and nuclear, fees Regulations 2016
Modern slavery, duty to co-operate with Commissioner, Northern Ireland Act
2015, Northern Irish Public Authority, regulations 2016
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June
EU Referendum
The UK referendum on whether or not to remain in the EU takes place on 23 June
2016.
How will health and safety be affected by the outcome of the referendum?
Although the basis of the health and safety regime in the UK was established in
1974, it has been underpinned and extended by EU legislation. The main element
of the EU legislation is the Health and Safety Framework Directive (89/391/EEC)
which establishes broad-based obligations for employers to evaluate, avoid and
reduce workplace risks.
The 24 main Directives on health and safety cover many of the most important
sectors or risk factors that lead to death injury and ill-health in the workplace such
as chemical safety, carcinogens, musculoskeletal disorders, machinery safety
and personal protective equipment, which means that minimum standards exist
across Europe.
Other areas to consider when making your vote are:
Working time regulations
Maternity rights
Parental leave rights
Equality
Workers rights
July
Safety, health and welfare at work, general application Amendment,
regulations 2016 (Ireland)
Pressure equipment, safety Regulations: draft 2016
Further things to look out for in 2016:
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Neil
Hewitt
Divisional Director
Quality and Technical
Standards at Arco
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With the
growth
of the
industry
comes the
increased
risk of CE
marked
products
that do not
conform
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References:
1 Market Research Report Frost
& Sullivan, Snap shot of UK & Ireland
personal Protective Equipment
(December 2015)
2 Arco CVP research, published January
2016
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Fiona
Khosla
Senior associate
director, Capita
Property &
Infrastructure
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John
Carpenter
Consultant
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Closing thoughts
The extrapolation of traditional section
3 obligations, through the specificity of
CDM, without adequate consideration and
guidance, continues to create unnecessary
difficulties.
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Elliott
Lockyer
Construction safety
advisor for Idom
Merebrook.
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References
Booty, F. (2009). Facilities management.
Oxford: Butterworth-Heinemann. P1982.
Baxendale, T. & Jones, O. (2000).
Construction design and management
regulations in practise progress on
implementation. International Journal of
Project Management. 18 (99), 33-40.
Construction Industry Training Board.
(2015). New health and safety duties
for clients. Last accessed 25/02/2015.
Howes, V. & Baldry, D. (2006). The
duties of construction clients under
health and safety legislation and their
impact on the minimisation of risk and
the avoidance of failure. Construction
Law. 22 (8), P499-514.
Zhou, Z. & Goh, Y & Li, Q. (2015).
Overview and analysis of safety
management studies in construction.
Safety Science. 72, 337-350.
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SENTENCING COUNCIL:
DEFINITIVE GUIDELINES
Michael Caplan QC explains the definitive sentencing guidelines as agreed by the
sentencing council.
Michael
Caplan
Associate director
at Turner and
Townsend
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Kizzy
Augustin
Senior associate at
Pinsent Masons LLP
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DATE OF
SENTENCE
21 January
Arm injury
25 January
Fatality
8.8bn
1m
(group turnover)
25 January
Broken leg
3bn
1m
26 January
Fatality
1bn
1m
HARM CAUSED
APPROXIMATE
TURNOVER
25m
LEVEL OF FINE
IMPOSED
1.8m
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Corporate Considerations
The culpability of a defendant company
remains the most decisive factor in
determining the appropriate level of fine to
be imposed by the Courts. The importance
of achieving high standards of compliance
with health and safety legislation has never
been greater for organisations.
Those companies found to have committed
deliberate breaches of, or who have
flagrantly disregarded, the law or even
those that fall far short of the appropriate
standard will be subject to the largest fines.
It is therefore important for organisations
to be able to demonstrate that they have
robust safety management systems in
place which are properly invested in and
implemented.
In light of the guidelines focus on company
turnover, fines for large and very large
companies that are guilty of committing
health and safety offences are going to
increase significantly. Arguments about
which corporate accounts should be
considered by the court will be significant.
Such battles will be especially pertinent
when dealing with groups of companies
and joint ventures consisting of distinct
incorporated (or even unincorporated)
entities.
It remains to be seen the extent to
which the prosecution will petition the
courts to consider the accounts of larger
parent companies with higher turnovers
when the sentences of smaller and less
profitable subsidiaries are being assessed,
particularly if the smaller subsidiary is the
entity in control of the activity related to the
alleged health and safety breach.
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Exposing someone
to a high risk of
death should
warrant almost
the same sentence
regardless of
whether or not
there is a fatality
serious injuries and death have until
now been much more likely to be
prosecuted than mere exposure to
risk; and the sentences have also
been much heavier.
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SENTENCING GUIDELINES:
THE LEGAL VIEW
With the new Sentencing Guidelines now in force, Eversheds Principal Associate
Paul Verrico sought the opinion of the leading practitioners in the field to ascertain
what differences, if any, they thought the changes would drive.
Paul
Verrico
Principal associate,
Eversheds
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Mary
Clarke
CEO, Cognisco
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Partner and
solicitor advocate at
Eversheds LLP
The new sentencing guidelines have been described as the biggest change to
health and safety law for 40 years. Tim Hill, Partner and Solicitor Advocate at
Eversheds LLP, asks if the changes will really make the workplace safer?
The new sentencing guidelines for health
and safety, corporate manslaughter, food
hygiene and food safety offences have now
come into full force. Although there are no
changes to substantive Acts or regulations,
this undoubtedly represents the biggest
change in the law since 1974.
In simple terms, it will introduce the
prospect of million pound fines for larger
organisations, and smaller businesses
could see fines in excess of 10% of
turnover. It also lowers the threshold for
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Director,
Turnstone Law
First Inflation
The sentencing guidelines introduce a
structured approach that the court must
follow. This involves plugging culpability,
likelihood and harm factors into a series
of tables to reach recommended starting
point fines, as well as ranges of fines above
and below the starting points. Similarly
for imprisonment of individuals, the tables
stipulate ranges of prison sentences above
and below various starting points.
These tables were calculated by reviewing
past sentences and then, particularly for
larger companies, increasing the levels of
fines. This first inflation was intended. It
was designed to accommodate the Court
of Appeals repeated view that health
and safety fines have generally been too
low and need to be increased sufficiently
to send a message to directors and
shareholders. Indeed, the Court of Appeal
envisages fines exceeding 100 million for
the worst health and safety breaches by
the largest companies.
But the Court of Appeal has not
recommended massive increases across
the board, even for less serious offences
by smaller companies and by individuals.
Yet this will be the effect of the next three
inflations.
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Summary
The combined effect of these last three
unintended inflations will mean that
criminal sentences will tend to converge at
the higher end of a scale that has already
been substantially increased by the first
intended inflation. The Court is given
some discretion but not enough to depart
materially from the stipulated calculations.
For example, it is going to be difficult for an
individual convicted offender to escape a
jail sentence if he or she was aware of a
risk of being in breach, nobody suffered an
injury but several people were exposed to
a medium likelihood of death or disability.
This is a very significant reduction in the
threshold for imprisonment for health
and safety offences. I would be very
interested to see if others come to the
same conclusion by working through the
guidelines?
It has never been more important to bring
the importance of health and safety to the
attention of board members and senior
executives and, for my part, to explain how
the law expects them to act in order to stay
out of jail.
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