april legislation ebook final

7/25/2019 April Legislation eBook Final

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2Health and Safety legislation review: Reflecting on a year of significant change

SPONSORED BY

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 AugustinP.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

CONTENTS

HEALTH AND SAFETY LEGISLATION REVIEW:

REFLECTING ON A YEAR OFSIGNIFICANT CHANGE
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Organisations have a duty of care to ensure as far as is reasonably practicable

the health and safety of their employees and others by identifying hazards,

quantifying the associated risks and implementing control measures to prevent

their actuation of the hazards. To fulfil this duty, it is important for organisations to

conduct investigations when workplace accidents or incidents occur.

Root Cause Analysis is an important element in helping organisations satisfy

and sustain HSE regulatory standards and comply with legislative requirements.

Some of the various ways RCA enables an organisation to meet these standards

include:

Documentation of a thorough and formal investigation report;

Analysis of near-misses;

Achieve and maintain quality control standards;

Waste management; and

Supply control.

ARMS Reliabilityprovides 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 un-

derstand their incidents and identify effective solutions that prevent recurrence.

Gary Tyne is Engineering Manager Europe forARMS Reliabilityand Certified

Apollo Root Cause Analysis methodology instructor.

FOREWORD

Gary

TyneEngineering managerEurope,ARMS Reliability
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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!

INTRODUCTION

There has been a sea change insentencing as turnover and risknow determine sentence, ratherthan causation of actual harm

SteanGrochHead of regulatory,DWF LLP and chair ofUK Health and SafetyLawyers Association


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As such, the guidelines create new certainties but generate additional

uncertainties; for business the enormous variation in potential sentences across

brackets and the significantly increased fines provided for are likely to mean that

limited peace of mind will be derived from their existence. Add to this the fact that

the Fee for Intervention regime has the potential to act as an incentive for HSE

inspectors to identify breaches, that no harm need have occurred in order for a

prosecution to be commenced, and that Magistrates no longer have a cap to the

sentences they can levy for health and safety offences and there is clearly thepotential for punitive enforcement.

HSEs new strategy and their approach to guidance for the new CDM Regulations

suggests a more hands-off approach in which industry leadership and guidance

from organisations such as the Insitute of Directors and IOSH will play a greater

role. While industry participation is welcome the move away from authoritative

and prescriptive guidance may make the task of advising business and of doing

business more difficult with the potential for conflicting approaches to create risk.

It is to be hoped that the promising signs of a more decentralised approach to

health and safety do not undermine the need for certainty in a principle-based

system such as ours. There are encouraging signs but there are also risks thatgo hand in hand with this HSE must be seen to be accountable or risk losing

the trust and confidence of industry. Parliament has recognised at the highest

level, in the Deregulation Act, that regulation must recognise the desirability of

promoting economic growth, it remains to be seen whether these will be adopted

in practice.

Steffan Groch is head of regulatory, DWF LLP and chair of UK Health and Safety

Lawyers Association

HSE must be seen to beaccountable or risk losing

the trust and condence ofindustry


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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 foodsafety 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 changesMarch 2016

Trade Union Bill - (Report stage in House of Lords)

The proposed change to the law will introduce requirements, including:

In all ballots, at least 50% of members entitled to vote must do so. This is in

addition to the need for a simple majority of those votes cast to be in favour of

action (eg if 100 members are balloted, at least 50 must vote, of which 26 or

more must vote yes for a valid mandate).

KEY LEGISLATION CHANGESFOR APRIL 2016 AND BEYOND

The guidelines have been described as themost dramatic change to health and safetylegislation since the introduction of the

Health and Safety at Work etc. Act 1974

LaurenApplebeyCommissioning editor,SHP


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The governmentstrade union billthreatens the

basic right tostrike

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 supportinnovation 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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Other legislation changes for March include:

The Offshore Installations (Safety Zones) Order 2016 (E/NI/S/W)

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:

For those aged 25 + 7.20ph

21-25 6.70ph

18-21 5.30ph


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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, tax-

free 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

Organisations with a turnover of at least36 million have to produce an annual

slavery and human tracking statement
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JuneEU 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:

ISO 45001 due for publication in October 2016 Health and Safety Executive (Powers) Bill 2015-16

Simple pressure vessels, safety regulations: draft 2016 date TBC

Smoke-free premises etc Wales Amendment, regulations: draft 2016 date TBC

Equipment and protective systems intended for use in potentially explosive

atmospheres Regulations: draft 2016 date TBC

Explosives Regulations 2014, amendment, regulations: draft 2016 date TBC

Electrical equipment, safety regulations: draft 2016 date TBC


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It is more than 20 years since the Personal

Protective Equipment (PPE) Directive

(89/686/EEC) was first adopted by the

European Council.

This piece of legislation relates to

occupational safety across Europe and was

implemented into UK law as the Personal

Protective Equipment (EC Directive)

Regulations 1992, coming into effect in

January 1993 and known as the Principal

Regulations.

Currently, it is the PPE Regulations 2002,

which implement the provisions of the PPE

Directive (89/686/EEC) in UK law.

For the purposes of this directive, PPE

means any device or appliance designed

for use in domestic, leisure and sports

activities, or for professional use. To be

worn or held by an individual for protection

against one or more health and safety

hazards in the execution of a specific

activity.

It lays down the conditions governing PPE

placed on the market and the basic safety

requirements which it must satisfy in order

to ensure the health, safety and protectionof the user - these should not be confused

with the Personal Protective Equipment

(PPE) at Work Regulations 1992, which

govern the employer on the suitability,

provision, maintenance, instruction and

use of PPE.

Having changed very little since

implementation, the PPE rules are now

in need of updating, to reflect the new

technologies that are now employed in

bringing PPE to market.

The Regulation was adopted on the 12thFebruary 2016 and published in the

Official Journal 20 days later. The two-

year transition period will now take place

for Member States with full enforcement

taking place around the end of 2018.

Existing PPE certificates, held by

manufacturers, will expire when the

regulation comes fully into force.

Safety managers procuring PPE need,

therefore, to be aware of the changes, to

ensure that their providers will be able to

meet the new certification standards.

While the existing PPE directive focuses

on manufacturers, the new regulation

will be effective over the whole supply

chain. Anyone involved in the supply and

distribution chain will, therefore, have to

take appropriate action to ensure the PPE

meets the required standards.

It is worth noting that the current PPE

legislation is a Directive. This is a legislativeact setting out objectives for EU countries

to achieve in their own way, by a certain

date. The new PPE legislation will be

reclassified as a PPE Regulation. This is

a binding legislative act, which must be

applied precisely across the EU by each

member country. Once decided upon and

announced by the European Commission

the rules will, therefore, be set in stone.

NEW PPE REGULATIONS WHAT YOU NEED TO KNOW

Safety managers procuring PPE need to beaware of the changes, to ensure that theirproviders will be able to meet the

new certication standards

JimLythgowDirector ofstrategic alliancesat SpecsaversCorporate Eyecare


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Despite Personal Protective Equipment

(PPE) having the required EC type approval

and CE mark, recent tests have indicated

that some of the products you assume to

be safe, may not actually be fit for purpose.

The seriousness of this issue was

recognised by the British Safety Industry

Federation (BSIF), when it wrote to its

members saying: This situation poses

an obvious risk to end users, and is a

timely reminder that only relying on CE

certification for certain product types is no

guarantee of ongoing quality assurance.

Furthermore, the BSIF is calling on all those

in the industry to make certain and ensure

their supply chain routes are fully aligned

to provide safe, legal and fit for purpose

PPE. As a leading UK safety company, withrepresentation on the BSIFs Federation

Council, we take these issues very

seriously.

In February this year, the new PPE

regulation was adopted by the European

Parliament, reclassifying some products,

introducing a five year limit on CE

certificates and clearly identifying the

obligations of all economic operators in the

supply chain.

Economic operators include manufacturers,distributors and importers. It also clearly

defines that an importer or distributor who

markets a product in Europe under their

own name, brand or trademark becomes

liable for the full manufacturers obligations.

Although this will be a good step forward

for the industry, and the period for these

changes to be implemented could take

until 2018, we need to act now.

The United Kingdom is one of the key

regional markets for PPE in Western

Europe1, where the supply of high quality

and reliable products continues to be the

number one customer consideration when

purchasing PPE equipment2.

With the continued growth of the industry

and employers increasing concern for the

safety of their employees, the importance

of robust legislation to protect workers is of

paramount importance.

The document that currently underpins the

legislation is the PPE Directive 89/686/

EEC. The role of which is to ensure that

suppliers of protective equipment follow the

correct approval procedures before placing

the product on the market.

Category two and three items of PPE

must follow an EC type approval and

carry the CE mark to prove certification.

Whereas category one or minimal risk PPE

are self-certified and CE marked by the

manufacturer after they assess the product

against the essential health and safety

requirements of the PPE directive.

However, worrying data has emerged that

with the growth of the industry, comes the

increased risk of CE marked products that

do not conform, which could result in anindividual not being adequately protected

during an accident.

Inadequate PPE in the market

There appears to be procedural

weaknesses within the EC type approval

and CE marking process. These

weaknesses can allow a less reputable

manufacturer or importer to gain CE

NOT ALL PPE IS CREATED EQUAL

Safety managers procuring PPE need tobe aware of the changes, to ensure thattheir providers will be able to meet the new

certication standards

Neil

HewittDivisional DirectorQuality and TechnicalStandards at Arco


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certification for products they wish to

market and then subsequently make

changes to the product.

These changes could impact on the

products safety performance as further

testing may not be conducted as the CE

certificate is already available.

Although, manufacturers of categorythree PPE are required to have a third

party monitoring process in place for the

actual product or a quality management

system, there is no third party production

monitoring process for category one or two

PPE. It is up to the manufacturer to ensure

the product continues to conform to the

standards.

Currently the UKs competent authorities

for market surveillance of PPE are under

increasing pressure due to reduced

budgets and this may be exploited by lessreputable manufacturers.

Toe cap failures

An example of these failures came to light

when Arco performed a number of tests on

safety footwear toecaps, products at the

front line of safety across a wide range of

industries.

Traditionally toe caps were made from

steel to ensure toes were not crushed in

the event of an accident, but non-metallic

materials have entered the marketplace,

offering lightweight design and the ability

to minimise disruption in security areas

and specialist manufacturer where metal

detection is required.

Some of the non-metallic toe caps in terms

of construction are made from composite

glass fibre and others are injection

moulded thermoplastics.

Arco carried out product assurance

compression testing, in our UKAS and

SATRA independently accredited lab, on

own brand footwear along with a sample of

footwear currently available on the market.

During the testing, it became apparent

that the safety footwear using some

injection moulded plastic toe caps in their

construction performed significantly worsethan the fibreglass composite toe caps

during compression testing.

What does this mean for the wearer of the

boots? If the foot is compressed, these

substandard toes caps would not protect

the wearer as intended, resultant injuries

being broken bones or even amputation.

The use of a thermoplastic toe caps

in safety footwear construction is not

immediately evident and purchasers are

relying on the CE mark being accurate.

This worrying issue has compelled Arco to

assure our customers that we do not allow

the use of sub-standard thermoplastic toe

caps in the construction of our own brand

products. We have also highlighted the

issue to all proprietary footwear brands in

the Arco catalogue and have requested

they confirm the type of toe cap used within

their footwear.

Safeguarding as an industry

Arco takes the issue of safety very seriously

and have invested in developing our own

Product Assurance Laboratory for the

testing of PPE and ensure we comply

with the obligations laid down by the EU

Parliament.

We ensure continued conformity via an

internal testing program within our own

laboratory and where necessary third party

accredited testing laboratories.

With thegrowthof theindustrycomes theincreasedrisk of CEmarkedproductsthat do not

conform


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We are also members of the BSIF

Registered Safety Suppliers Scheme(RSSS). Companies displaying the

schemes logo have signed a binding

declaration that the safety equipment they

offer meets the appropriate standards, fully

complies with the PPE regulations and is

appropriately CE marked.

Keeping workers safe no room for

doubt

Identifying true product compliance is

difficult for the user. The responsibility falls

to the manufacturer, who may not have

the resources in place to ensure regular

testing. Anyone who has concerns over

the safety of the equipment they are being

supplied should follow these steps:

Ask your suppliers for a declaration of

conformity that shows original

certification for the PPE you are

purchasing.

Ask your suppliers to define their

process for sample testing to ensure

safety products continue to meet the

required standards. Ensure your suppliers are members

of the BSIF Registered Safety Supplier

Scheme.

Ask your suppliers to define their

process of quality assurance at the

manufacturing facility to ensure the

products are being manufactured as

they were originally certified. Always buy from a trusted source.

The UK has a strong health and safety

record, of which we are very proud. As an

industry, we must work together to raise

the standards of compliance in the UK.

Manufacturers, importers and distributors

need to have the necessary measures

in place to ensure that the products

they supply are capable of doing the job

intended for. Purchasers need to remain

vigilant to safeguard your workers.

References:

1 Market Research Report Frost

& Sullivan, Snap shot of UK & Ireland

personal Protective Equipment

(December 2015)

2 Arco CVP research, published January

2016

Neil Hewitt is Divisional Director Quality and

Technical Standards at Arco. Arco is the

UKs leading safety company. It distributesquality products and training and provides

expert advice, helping to shape the safety

world and make work a safer place. For

more information, visit www.arco.co.uk.

Identifying true product compliance is

dicult for the user. The responsibilityfalls to the manufacturer, who may nothave the resources in place to ensureregular testing
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In April 2015, a revision to the 2007

Construction Design and Management

(CDM) Regulations was introduced. These

regulations aim to improve health, safety

and welfare and provide information on the

responsibilities of key stakeholders when

working on construction projects.

Now that we are almost a year into working

with the new regulations, the key questionto consider is: has there been a significant

change from CDM 2007 and are clients

complying with the new regulations?

The core requirements set out in the new

regulations remain essentially unchanged

from those in CDM 2007. The majority

of changes relate to the management of

projects determined by the revised roles

and duties of the client, principal designer,

principal contractor, designers and

contractors. These changes have altered

the pre-construction planning phase of

projects, before site work commences.

The latest revision to the CDM regulations

resulted from:

A perceived over-interpretation of theregulations leading to the process being

viewed as a tick-box compliance

exercise;

A belief by some clients that the CDM

coordinator role in the pre-construction

phase was often a bureaucratic add-on

with them not always embedded into

projects, resulting in additional costs

with little perceived value added;

ONE YEAR ON CDM 2015The revised CDM regulations came into force in April last year. One year in, Fiona

Khosla, senior associate director, Capita Property & Infrastructure, explains what

the main changes have been and how they have bedded in

FionaKhoslaSenior associatedirector, CapitaProperty &Infrastructure


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The persistence of unacceptable health

and safety standards, particularly on

smaller sites where there was less

chance of HSE intervention.

So what have the main changes

been?

There has been structural simplification

of the regulations to make them easier for

stakeholders to understand.

For example, the regulations now require

two main duty holders for the pre-

construction phase, but there are still areas

where the industry is finding it difficult to

establish what is required to comply and

how compliance is being monitored.

The traditional Approved Code of Practice

(ACoP) has been replaced with more

targeted guidance documents divided for

each stakeholder. These guides have been

met with mixed reviews from the industry

with concerns that duty holders will only

be knowledgeable on the guide produced

specifically for them and not the wider

responsibilities of the project team.

There is a perception that this approach

results in piecemeal guidance rather than

a comprehensive guide of all project team

responsibilities and their interactions with

each other.

There has certainly been a lot of debate

surrounding the type of work that requires

construction phase plans. Any project

that is classed as construction work now

needs to have a construction phase plan

regardless of the size and duration of the

project. Smaller projects already provide

risk assessments under the Management

of Health and Safety at Work Regulations.

The concern here is that the additionalconstruction phase plan will impact on

costs and administrative work without

providing clarity on the health and safety

benefits it will generate. There is also

uncertainty over how this is going to be

reviewed from a compliance perspective.

The role of CDM coordinator has now

been replaced with a new role of principal

designer. CDM coordinators were aware

of the need to coordinate design risk

management before but the principal

designer ensures that health and safetyconsiderations are made at the concept

design stage and onwards throughout the

life of the design.

Those who are undertaking the principal

designer role will no longer need

to demonstrate the skills set out in

competence tables in the 2007 CDM

Regulations that the CDM coordinator had

to meet.

A principal designer will instead have to

demonstrate to the client that they possess

the correct skills, knowledge, training and

experience for that specific project. This

requirement to demonstrate suitability on

a project by project basis is better suited

to the industry. It ensures that client

specification is delivered to the highest

standard, rather than the blanket approach

to skills and knowledge the CDM 2007

Regulations enforced.


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Another change in the new regulations

has seen the removal of the exemption

for domestic clients to comply with CDM

Regulations removed.

This has meant that the new CDM duties

have been passed to the lead contractor

on small scale projects. It is hard to see

if this has made any impact yet, as many

domestic clients or small scale contractors

will not be aware of the regulations. It is

also hard to see how this will be monitored

for compliance in the case of smaller

projects.

The final key change in the new CDM

Regulations is the change in the threshold

for appointment of principal contractorsand principal designers. Projects now

require these duty holders when there is

more than one contractor on site. The HSE

suggest that this will capture close to an

additional one million projects a year, but

that the requirements will be proportionate

and little more work will be necessary.

Some concern has been expressed about

what constitutes more than one contractor,

and how it is possible to know how many

contractors may be needed.

This means that there are now two key

project thresholds. One to introduce

coordination right at the start of the

design phase and one to notify the HSE

about the project. This notification must

be done where the construction work is

likely to last longer than 30 working days

and employ more than 20 workers working

simultaneously at any point, or exceed 500

working days.

The HSE has made it clear that the client

holds the key to the changes in the CDM

Regulations. However, the whole industry

needs to work together to embrace the

regulations and comply to ensure health

and safety on construction projects is

adequately planned for.

It is still early days yet in terms of

determining whether the updated

regulations are more effective in achieving

this goal and it will be interesting to see

how the industry has changed after

another year working with CDM 2015.

Fiona is a Director with responsibility for

delivering Capita Symonds Health and

Safety Professional services in a range

of industries providing advice, guidance

and training to clients throughout the UK.

This includes undertaking assessment of

health and safety requirements in a range

of industries, development and delivery

of health and safety advice, management

systems, Access Consultancy, inspections,

auditing and risk assessments.

Fiona is also involved in the preparation

and delivery of health and safety training,

provision of CDM-related services,

including CDMC, assessment of both office

and site health and safety standards,

auditing compliance with health and safety

and CDM responsibilities.

The role of CDM coordinator has nowbeen replaced with a new role of principal

designer'


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In a previous article for SHP, I highlighted

a number of difficulties that construction

designers face when applying the

requirement, as it then stood, to eliminate

hazards and reduce risk, so far as is

reasonably practicable (SFARP).1

These difficulties were significant

showstoppers and arose from too little

thought being given to the applicationof this requirement to designers in the

construction context.

The revision of the Construction (Design

and Management) Regulations, published

in January 2015 (CDM 2015), and now

in force HSEs third attempt to legislate

in this area, and its fourth attempt to write

guidance was a golden opportunity to

tackle these major impediments.

Whereas other recommendations of

the influential Lfstedt report2have

been meticulously followed through, the

recognition that further practical guidance

was required with regard to SFARP has

been ignored.

Construction industryUK construction can be world-class,

for both large and small-scale projects.

However, what we are seeing is a major

gap opening up between those projects

with integrated teams, knowledgeable

clients, and a culture which demands ever

higher standards, and those which, often

through no fault of their own, operate in a

somewhat dysfunctional manner.

MOVING FORWARD ON CDM 2015One year on from CDM 2015s introduction where concerns were raised concern

over its application, John Carpenter offers a timely update and some pointers for

improvement.

JohnCarpenterConsultant


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There is no such thing as a unified

construction industry and as was also

pointed out previously, many of the

incidents of ill health and accidents occur

in the latter, generally smaller project

category.

The lack of guidance mentioned at

the outset of this article affects every

designer, but for those in the top league

they generally pass muster by virtue

of the strong presence of contractor,knowledgeable client demands and project

culture. However, for most of the industry,

little has changed: it lacks leadership and

facility.

The late Lord Bingham, considered by

many as one of the 20th centurys finest

judges, has said: [An] important function

of the criminal law is to discourage criminal

behaviour, and we cannot be discouraged

if we do not know, and cannot reasonably

discover, what it is that we should not do.3

This is quoted in the negative, to suit

Binghams script. However, the message

is clear: clarity is required for the proper

rule of law. There is no clarity, even after

20 years of CDM, for the construction

designer. This has been significantly

influenced by HSEs historical stance of

denying that a problem exists, but declining

to discuss it in any meaningful manner.

When one considers the make-up of the

industry this necessary clarity is even moreimportant. I suggest the hypothetical three

person practice in Bury St Edmunds as

representative of the typical construction

designer and would ask the reader to

consider the following points against this

background.

At a recent meeting, HSE expressed the

view that designers should concentrate

on the (undefined) big picture. It is the

antithesis of what Bingham was arguing

for. One might wonder how that squares

with the architects prosecuted over poor

access to a plant room4, or over the use of

large blocks.5Both relate to detail. Neither

the regulation itself (regulation 9) nor HSE

guidance mentions or infers such a big

picture approach. Most occupational

safety and health risk occurs in the detail.

CDM 2015

Since CDM 2007 a great deal of work

has gone into explaining the relevance

and difference between hazard and

risk. Guidance, books, training courses,

company procedures have all been written

around the use of hazard and risk and the

benefits of considering them separately.6

The acronym ERIC, used in the CDM2007

guidance, and endorsed by HSE, has been

used successfully to provide a practical tool

for qualitative risk management. But no

longer; without any discussion, or mention

within the CDM consultation document,

hazards are no more. The industry will no

doubt deal with this, but it was an unhelpful

and unnecessary move, furthering

difficulties in the process of encouraging

designers to play a bigger role in risk

management.

The new guidance, L1537, does little to

help the designer understand the processof eliminating risk or, where not reasonably

practicable, to try to reduce it. Indeed,

two examples quoted, that of moving

plant off the roof to ground level (para

86a) and reducing the size of paving flags

(para 87a), point designers in a direction

and then abandon them, providing no

UK construction can be world-class, forboth large and small-scale projects


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explanation as to how, within the context

of real project pressures, the legal

requirement is achieved with confidence.

Further guidance that I received from HSE

this year illustrates the problem industry

faces.

In answer to the need for further

explanation (specifically, in the case

when a risk-mitigated solution costs morethan an unmitigated solution, asking at

what point does the extra cost become

disproportionate, and hence need not be

adopted), HSE has stated: Obviously, the

tipping point will depend on the specific

circumstances involved with the design e.g.

the size and complexity of the project, the

risks involved etc. The level of effort on the

part of the designer would also depend on

the individual circumstances of the project.

HSE is not persuaded that this [further]

guidance is necessary and may bemore limiting than helpful to clients and

designers as it would seek to define,

whereas HSE believe that a pragmatic

approach is more helpful where all

the variables of any given situation are

considered by the professionals and clients

in determining what is a proportionate

response to mitigation or control of risk.8

One has to ask in what way does the

size of a project affect the degree of

acceptable risk? What are these individual

circumstances? What are the variables?

How does the designer identify them?

Also, supposing it is possible to do all that

has been suggested, what does one do

with them to determine a proportionate

response?

This mantra supposes that the design

team will collectively gather to consider

the variables for each risk encountered

(including, it implies, contractor-appointed

designers along with temporary works

designers with whom there is no

contractual link with the client).

However, this is an impractical solution,

which indicates a lack of practical

understanding of contract, liability, PI

cover, time and all the other real projectpressures. Furthermore, it proposes that

the client becomes involved in deciding

what satisfies the law in a highly technical

situation.

How does Mr Jones (a busy greengrocer

that wishes to extend his premises), as

client, handle a discussion on whether or

not to use smaller paving slabs, from a

manual handling perspective, or whether

to split a steel beam into back to back

channels, to reduce weight, when both

examples involve additional cost over thedo-nothing situation? Such a client will

expect a compliant solution derived by

those whom he is paying for construction

expertise.

There is a worrying trend here in thinking

that a team discussion is the way to

resolve these issues. While we all accept

the many shortcomings in team behaviour

(lack of communication, co-operation

and co-ordination), one thing that teams

do not, and cannot do is make collective

risk-based decisions. Decisions are made

by the discipline owning the risk (albeit

assisted by others where their disciplines

impinge) for reasons of contract, liability,

competence and clarity of responsibility.

Moving forward

There is no available solution to the

current legal requirement embedded

Decisions are made by the discipline ofowning the risk for reasons of contract,

liability and competence.


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in regulation 9. Without the control and

sign-posting necessary for goal-setting

legislation to work effectively the regulation

is unworkable. The formal guidance fails to

tackle this; recent advice from HSE adds

further confusion. Consequently, we need

an alternative approach at least in the

short-term.

The proposal, already put before HSE,

is to identify clearly defined sectors e.g.

domestic basements, new housing,

refurbishment, known to be of legitimate

concern to HSE and others.

To then canvas the users (clients

and others), principal designers and

constructors (primarily sub-contractors

as it is they who suffer from any designshortcoming) in order to determine any

key concerns they have regarding the risk

management performance and information

provision from designers.

Taking the most common concerns in each

group, guidance can then be written to

illustrate the necessary actions that are

to be taken by those involved in design.

I have successfully canvassed parties in

the past to determine any concerns, albeit

in relation to general steelwork design

issues.9

Two examples have already been written.

These were not the result of canvassing

but instead were chosen to expand and

complete the examples given in L153,

quoted above, given their shortcomings.

These are both published on the ICE

website.10Such guidance coming from an

authoritative source, such as ICE, should

be persuasive; more so if endorsed by

HSE.

Closing thoughts

The extrapolation of traditional section

3 obligations, through the specificity of

CDM, without adequate consideration and

guidance, continues to create unnecessary

difficulties.

The previous article outlined the

background obstacles. In this second part,

an analysis of CDM 2015, and subsequent

statements from HSE, indicate that these

deficiencies have been ignored or poorly

dealt with.

It is a legitimate comment, after some 20

years, to argue that with authority comes

responsibility: a responsibility to provide

clarity for the rule of law. Industry has

offered to assist and has started the

process by producing the two guidance

sheets cited above. These do not solve the

underlying problem but are a pragmatic

and directly applicable step forward.

Industry needs to speak. HSE needs to act.

John Carpenter is a consultant

References

1. shponline

2. The construction designers dilemma

(Part 1) at Reclaiming health and safety

for all: An independent review of health

and safety legislation, Professor Ragnar

E Lfstedt November 2011

3. The rule of law, Bingham T, 2011, p37.

4. Oxford Architects

5. Neil Vesma Architects

6. A simple approach to the managementof risk on civil and structural engineering

projects. Viewpoint in The Structural

Engineer 7 April 2010 p20.

7. Managing health and safety in

construction L153

8. Communication from HSE to the author

15th May 2015.

9. Designing for safe construction

Viewpoint in The Structural Engineer 16

May 2006 pp16-17.

10. See ICE.org
https://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttp://www.hse.gov.uk/press/2010/coi-sw-739sww09.htmhttp://www.architectsjournal.co.uk/home/hse-in-picking-on-profession-row/138787.articlehttp://www.hse.gov.uk/pUbns/priced/l153.pdfhttp://www.hse.gov.uk/pUbns/priced/l153.pdfhttps://www.ice.org.uk/disciplines-and-resources/briefing-sheet/paving-slabs%20and%20https://www.ice.org.uk/getattachment/disciplines-and-resources/briefing-sheet/roof-work-repair-and-maintenance/Roof-working-briefing-note.pdf.aspxhttps://www.ice.org.uk/disciplines-and-resources/briefing-sheet/paving-slabs%20and%20https://www.ice.org.uk/getattachment/disciplines-and-resources/briefing-sheet/roof-work-repair-and-maintenance/Roof-working-briefing-note.pdf.aspxhttp://www.hse.gov.uk/pUbns/priced/l153.pdfhttp://www.hse.gov.uk/pUbns/priced/l153.pdfhttp://www.architectsjournal.co.uk/home/hse-in-picking-on-profession-row/138787.articlehttp://www.hse.gov.uk/press/2010/coi-sw-739sww09.htmhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttps://www.gov.uk/%E2%80%A6/attachment_data/file/66790/lofstedt-report.pdfhttp://hubs.ly/H02-Gml0


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Construction safety issues

According to Booty (2009, P61) the key

health and safety issues in respect of

construction activities are as a result of:

failure to assess risks adequately;

failure to recruit and retain skilled

workers; failure to ensure proper site

management;

poor health and safety systems;

inadequate resourcing of site

management;

poor leadership;

inappropriate equipment; and

failure to plan work properly.

The list compiled by Booty is unranked in

importance but the author suggests that

project planning has a significant ability

to influence safety. The CDM regulations

were introduced to place duties on those

involved in a project to plan for safety and

welfare at all stages of the construction

process from the planning stages to end

of life building demolition. New legislation

has involved a shift in the importance

of client duties with the greatest

responsibility now falling on the client who

has overall responsibility for the successful

management of the project (CITB, 2015).

A study by Zhou et al (2015, P339)

demonstrates a trend the author

experienced, with regard to the focus of

construction. Zhou et al studied over 400

academic construction safety articlesand found few to be focused on the early

project phases.

The study found that prior to 1995,

research topics focused mainly on accident

statistics, accident cost, safety regulation

and safety measures.

After 1995, Zhou et al observed that

established research topics like accident

statistics and safety measures were still

being studied, as well as an increasing

focus on proactive management of

accidents, safety monitoring, near miss

management and safety knowledge.

Proactive safety management

This change in focus displays a knowledge

improvement from studying reactive topics

to a focus on preventative subjects. This

study confirms, along with the shift from the

government in the latest CDM regulations

CDM AND THE CLIENT:PLANNING, PRE-EMPTINGAND BEING PROACTIVE

This change in focus displays a knowledgeimprovement from studying reactivetopics to a focus on preventative subjects

ElliottLockyerConstruction safetyadvisor for IdomMerebrook.

Elliott Lockyer looks at the changing role of the client within CDM projects, and the

importance of project planning and managing safety from the outset, not reactingto it once the worst happens.

In his article, Elliott looks at research, which shows a link between successful

construction management and a clients understanding of the regulations.


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that contractors and designers are now

expected to be fully aware of their duties

and the focus is now on planning and theduties of the clients. The lack of academic

writing and publications on the role of

the client and their duties is reflected in

the Zhou et al work leaving a gap in the

knowledge and the author suggests, a

large potential for construction planning

research to be focused upon this.

In their research Baxendale and Jones

say: Once a client has taken a decision to

commission a project the initiative lies with

the client to apply the CDM regulations

(2000, P37). When researching examples

of litigation involving the failure of a client

to fulfil their duties the general trend shows

that a failure to properly plan is the cause

as: the duties of the client are confined

to a preparatory phase of the construction

project (Howes and Baldry, 2006, P9).

This clearly shows that if a client

familiarises themselves with the regulations

and makes every effort to plan for safety

and the competence of other duty holders

they have a far greater chance of beingsuccessful in construction management.

Multiple authors on the subject have

commented upon the link between

success and a clients understanding of

the regulations.

The importance of the client

Clients have little ability to influence a

project when the construction phasehas begun, so making the most of their

opportunity at the start of a project is

paramount. A conscientious client who

believes in the ethical principles of health

and safety, corporate social responsibility,

acting in good faith, developing

partnerships etc will undoubtedly produce

the highest quality pre-construction

information without being forced to. As

noted, any documents produced under

CDM are to aid project planning success

not just documents for documents sake.

Cases of client failures leading to

prosecution are available online. It is my

opinion that enforcing the production of

pre-construction information could have a

very significant impact on client education

as it would require research and therefore

act as a self-taught exercise in construction

safety and the regulations themselves.

The concept of pre-construction

information has been featured in

construction safety management texts fordecades but has been overlooked and now

with new regulations placing greater duties

on the client it is time to reinforce its value

and the expectations of the HSE to see

excellent examples for all projects.

A conscientious client who believes in theethical principles of health and safety will

undoubtedly produce the highest qualitypre-construction information without beingforced to


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Access to information and guidance

The regulations have featured pre-

construction information for some time but

I had to actively seek the information on

what it requires leaving it out of reach to

novice clients.

The 2007 ACOP is hundreds of pagesand probably quite onerous for a novice,

when in fact their duties could be compiled

separately into a brief guide containing

worked examples. A guide of this type is

available for the 2015 regulations but only

states that pre-construction information

must be provided with no details on what

this includes (INDG411, A short guide for

construction clients on the Construction

(Design and Management) Regulations

2015). This needs to be updated with

information on what pre-construction

information should include. Clearly, less

information available to the client is in fact

a backwards step in this respect.

Further research could be undertaken

in this field to determine what else, if

anything, would contribute to construction

safety in terms of pre-construction

information and client involvement.

References

Booty, F. (2009). Facilities management.

Oxford: Butterworth-Heinemann. P19-

82.

Baxendale, T. & Jones, O. (2000).

Construction design and management

regulations in practise progress on

implementation. International Journal ofProject 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.

Elliott Lockyer is construction safety advisor

for Idom Merebrook.
http://www.citb.co.uk/news-events/uk/new-health-and-safety-duties-for-clients/http://www.citb.co.uk/news-events/uk/new-health-and-safety-duties-for-clients/http://www.citb.co.uk/news-events/uk/new-health-and-safety-duties-for-clients/http://www.citb.co.uk/news-events/uk/new-health-and-safety-duties-for-clients/http://www.citb.co.uk/news-events/uk/new-health-and-safety-duties-for-clients/http://www.citb.co.uk/news-events/uk/new-health-and-safety-duties-for-clients/http://hubs.ly/H02-Gml0


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Under CDM 2007, duty-holders wereobliged to make appointments to key roles

on construction projects according to

certain competence criteria.

Following adverse comments during the

consultation on CDM 2015, these criteria

were dropped in the new Regulations in

favour of a requirement for sufficient skills,

knowledge and experience on the part

of those carrying out the role of principal

designers and contractors.

The client must define within their

procurement process, and prior to making

any appointment, that the principal

designer be it an individual or an

organisation has the required skills,

knowledge and experience necessary to

undertake the role. And the individual or

organisation in question must also be able

to demonstrate same.

However, there is no specific guidance tohelp the duty-holder in determining whether

or not their potential appointees fulfil

these requirements, and one question in

particular that is being asked is: what is the

difference between skills, knowledge and

experience and competence?

The guidance to CDM 2015 (L153) refers

to the following:

Self-assessment PAS91 currently

offers a framework of questions to

determine the relevant skills, knowledge

and experience. Although this has

yet to be updated to reflect CDM 2015

requirements, it is a good basis on

which to provide evidence of compliance

with the main duties of the principal

designer, which are to:

Assist the client in identifying,

obtaining and collating the pre

construction information;

Provide pre-construction information

THE SKILLS, KNOWLEDGE ANDEXPERIENCE REQUIRED BY APRINCIPAL DESIGNER

Tim SimsAssociate directorat Turner andTownsend


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to designers, the principal contractor,

and contractors;

Ensure coordination and cooperation

during the pre-construction phase;

Ensure all designers comply with their

duties;

Liaise during the construction phase;

and

Prepare the health and safety file.

Independent (third-party) assessors

some members of Safety Schemes

in Procurement (SSIP) have updatedtheir assessments to reflect the new

role of principal designer. Principal

designers are now assessed on their

main duties at both an organisational

and individual level, and their

qualifications and experience are

checked in much the same way as

they were under the previous system of

competence assessment.

Core competencies for the role should be

considered both in the client assessment

and by the principal designer themselves,

to demonstrate they have the relevant

skills, knowledge and experience. To prove

it is capable of carrying out the principal

designer role, an organisation must be able

to demonstrate:

Ability to develop a principal designer

team and understand and address gaps

in competence;

Effective and proactive stakeholder

engagement, team-building and team-

working skills;

Proactive knowledge-sharing andcontinuous improvement;

Access to suitable organisational

expertise in health and safety and

engineering;

Commitment to training and lifelong

learning;

Management team has had health and

safety training to understand CDM

2015; and

Processes for ensuring health and

safety is planned and managed

throughout the project.

An individual must have technical

knowledge of the construction industry

relevant to the project in the following

domains:

Engineering and design:

Technical and relevant sector

knowledge; Ability to undertake multidisciplinary

design reviews, including large,

complex projects, where applicable;

Chartered membership of a relevant

institution;

Health and safety:

An understanding of how health and

safety is managed through the design

process, as well as whole-life health

and safety through design and

construction;

Demonstrate knowledge and

experience of construction health and

safety risks;

Membership of a relevant institution.

CDM:

Good working knowledge and

experience of CDM Regulations;

Demonstrate management and

coordination skills required of a

principal designer;

Confidence to challenge designs.

Given the wide application of the CDM

Regulations 2015, many more projects now

require a principal designer, and the role is

being undertaken by new parties, including

clients, architects, engineers, project

managers and principal contractors.

Tim Sims is associate director at Turner

and Townsend

Core competencies for the role should beconsidered both in the client assessmentand by the PD themselves


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Following a consultation last year, the

Sentencing Council has now published its

definitive guidelines covering health and

safety, corporate manslaughter and food

safety and hygiene offences.

The publication of the guidelines means

that for the first time, courts in England and

Wales will have comprehensive sentencing

guidelines covering the most commonly

sentenced health and safety offences and

food safety offences.

Up until now, there was only a definitive

guideline produced by our predecessorthe Sentencing Guidelines Council for

corporate manslaughter and health and

safety offences causing death, and very

limited guidance for sentencers for other

health and safety and food safety offences.

These can be complex and serious

offences that do not come before the

courts as frequently as many other criminal

offences. We found that given the lack of

familiarity with some of these offences,

sentencers wanted more guidance. Our

research also showed that this lack

of familiarity had, at times, resulted in

fines that were not proportionate to the

means of offenders and did not reflect the

seriousness of offences.

We want fines for these offences to be fair

and proportionate to the seriousness of

the offence and the means of the offender.

In order to achieve this, the guidelines set

out sentencing ranges that reflect the very

different levels of risk of harm that can

result from these offences.

In introducing greater proportionality to

sentencing, we expect that in some cases,

offenders will receive higher penalties,

particularly large organisations that are

convicted of serious offences.

While corporate manslaughter obviously

always involves at least one death, the

seriousness of health and safety offences

is very varied. One incident could involve

people being put at the risk of minor harmeven though no one was actually hurt,

while another incident could risk or result

in multiple fatalities. Food offences also

vary hugely. Poor hygiene or preparation

standards in a restaurant kitchen could put

customers at risk of illness or could lead to

a fatal outbreak of food poisoning.

As well as considering the risk of harm

caused, the sentencing ranges also

consider offender culpability. An offender

could be guilty of minor failings in otherwise

proper procedures, or could be involved in

deliberately dangerous work practices.

It is important to remember that these

sentences apply to criminal offences where

the culpability of an offender has been

demonstrated. In circumstances where

an employer took all proper measures to

prevent an incident but one still occurred, it

is unlikely a prosecution would be brought.

SENTENCING COUNCIL:DEFINITIVE GUIDELINES

We expect that in some cases oenderswill receive higher penalties, particularlylarge organisations that are convicted of

serious oences

MichaelCaplan

Michael Caplan QC explains the definitive sentencing guidelines as agreed by the

sentencing council.

Associate directorat Turner andTownsend


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Where there has

been a conviction,the harm

assessment within

the guideline limits

the assessment of actual harm caused to

harm, which was reasonably foreseeable.

The guidelines also require the court

to take into account the size of the

organisation when determining the

sentence. We have chosen to use turnover

to identify the starting point of the fine

since this is a clear financial indicator that

can be readily identified by sentencers inaccounts or annual reports.

However, we are clear that turnover is

used only to determine the starting point

of the fine. The guidelines then require an

overall assessment of the organisations

financial circumstances, taking into

account any additional relevant financial

information, such as the profit margin of

the organisation, the potential impact on

employees, or potential impact on the

organisations ability to improve conditions

or make restitution to victims. This means

sentences will always be tailored to the

offenders specific circumstances, and may

move up or down or outside the ranges

entirely as a result of these additional

mandatory steps.

The previous guideline produced by the

Sentencing Guidelines Council stated that

for an offence of corporate manslaughter,

the appropriate fine will seldom be less

than 500,000 and may be measured in

millions of pounds. However, since by lawthe court is required to take into account

the means of the offender it cannot set

fines that an offender simply cannot pay.

The new guidelines therefore provide a

more nuanced and proportionate structure

than that set out under the previous

guidelines.

As well as punishment, the guidelines

provide for remedial orders to be madeby the court in addition to or instead of

punishment in cases where they may

be appropriate, although addressing

remedial action with offenders remains

the responsibility of the Health and

Safety Executive rather than the courts.

The guidelines also include a range of

mitigating factors, which allow for voluntary

positive action to remedy a failure on

the part of offenders to be reflected in

sentences.

The Sentencing Council held events duringthe consultation period with health and

safety legal practitioners and those in

construction, insurance, utilities, industry,

retail, food manufacture, hospitality, and

leisure, as well as the Food Standards

Agency and enforcement practitioners from

local authorities to get as many insights as

possible. We received over 100 responses.

The Council carefully considered all of

the responses and we have published a

comprehensive consultation response

document which is available on our

website. While the general approach

outlined in the draft guidelines has been

maintained, we have made a number of

amendments to improve their efficacy.

The guidelines came into force in courts on

1 February 2016 and will apply to any case

sentenced on or after that date.

We hope they will provide valuable

guidance in sentencing what are

often complex cases and will improveconsistency in the approach to sentencing

these offences.

Michael Caplan QC is a member of the

Sentencing Council


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On 1 February 2016, the new sentencing

guidelines for health and safety offences

came into force. They direct the courts

to consider the sentencing of offending

organisations by way of a step-by-step

approach, primarily examining culpability,

the seriousness of harm risked and the

likelihood of harm, which are divided into

a number of different levels to reflect thescale within each category.

In light of a number of preceding Court of

Appeal judgments expressing the same

view, the guidelines then require an

assessment of turnover in order to set a

starting point for a fine that is intended

to bring the message home to the

directors and shareholders of offending

organisations, as stated by the Judge in

the environmental prosecution of Thames

Water.

The majority of the other sentencing steps

relate to the consideration of increasing

or decreasing the level of fine according

to a range of factors. There are similar

guidelines for the sentencing of individuals

for health and safety offences, with a

stronger focus on the risk of a custodial

sentence for those found guilty of serious

breaches.

Ever since the Sentencing Council

proposed these new guidelines, the health

and safety industry has anticipated a

revolutionary impact on the levels of fines

compared to those that have historically

been handed down for simple health and

safety breaches committed by corporate

entities. Although we are still in a budding

phase, we can begin to analyse theinfluence the guidelines have had on the

courts to date and we can also consider

the extent to which they may affect future

sentencing trends.

The Guidelines in Practice

February 2016 heralded a new era in

sentencing for health and safety offences.

On the 8th of the month, ConocoPhillips

(UK) Limited became the first very large

organisation to be convicted and sentenced

under the new regime, although the hearing

actually commenced prior to the date onwhich the new guidelines came into force.

The company, which has a turnover of 4.8

billion, pleaded guilty to three breaches of

relevant health and safety regulations for a

series of uncontrolled and unexpected gas

releases at one of its offshore installations.

Although nobody was actually injured

as a result of the breaches, due to a

communication breakdown workers were

THE 2016 HEALTH AND SAFETYSENTENCING GUIDELINES:HOW HAVE THINGS CHANGEDFOR COMPANIES?

There is a stronger focus on the risk of acustodial sentence for those found guiltyof serious breaches

KizzyAugustin

Kizzy Augustin, senior associate at Pinsent Masons LLP, explains how thesentencing guidelines for health and safety offences are having an impact, just

two months after they were introduced.

Senior associate atPinsent Masons LLP


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sent to investigate the incident while there

was still gas present. When sentencing, the

Judge commented that the risk of death of

serious injury would have been extremely

high had there been a gas ignition. In

applying the guidelines, this may have

been regarded as a Harm Category 1 case

due to the seriousness of the harm risked

and the high likelihood of harm.

Although the company had procedures

and safeguards in place, the Judge noted

a failure to properly identify and control

risks. The level of culpability in this case

may have been classed as Medium as

systems were in place but they were not

sufficiently adhered to or implemented.

If our analysis of the guidelines reflects

the sentencing Judges own interpretation

then the starting point for the fine would be

1.3 million, with a range of 800,000 to

3.2 million to accommodate mitigating or

aggravating features.

In mitigation, the company pointed to its

high level of cooperation with the HSE

as well as significant investment in new

systems designed to prevent recurrence.

When considering the companys billion

pound turnover, it is also worth noting that

the company in fact made a pre-tax loss

of 85 million. The fine that was actually

imposed by the court was 3 million

equating to 1 million for each offence.

A number of cases heard weeks before the

guidelines came into effect also illustrated

the prescriptive and uniform approach to

be adopted by the courts (in the spirit of

the 2016 Guidelines) for health and safety

breaches.

Four different Crown Courts imposed fines

of 1m or more against large companies

for health and safety breaches (all of which

followed early guilty pleas)

The ConocoPhillips case demonstrates the

dramatic shift in the landscape of health

and safety sentencing that the guidelines

have brought about a breach of health

and safety regulations which did not result

in injury may have previously attracted a

fine in the tens of thousands, as opposed

to millions.

It is quite likely that more organisations will

now fall into higher categories of offence

seriousness by virtue of the guidelines

focus on the risk of harm as opposed to

actual harm. The extent of these seemingly

hypothetical risks will undoubtedly become

a contested point at trial, likely to lead to

prolonged sentencing hearings involving

the introduction of expert evidence.

CORPORATE

OFFENDER

DATE OF

SENTENCE

HARM CAUSED APPROXIMATE

TURNOVER

LEVEL OF FINE

IMPOSED

C.RO Ports

London

21 January Arm injury 25m 1.8m

Balfour

Beatty Civil

Engineering

25 January Fatality 8.8bn

(group turnover)

1m

National Grid

Gas

25 January Broken leg 3bn 1m

UK Power

Networks

(Operations)

26 January Fatality 1bn 1m

It is quite likely that more organisationswill now fall into higher categories ofoence seriousness by virtue of theguidelines focus on the risk of harm'


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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 committeddeliberate 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 committinghealth 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.

The guidelines state that ordinarily only

information relating to the organisation

before the court will be relevant, unless

exceptionally it is demonstrated to the court

that the resources of a linked organisation

are available and can properly be taken

into account. It is therefore unlikely that

the accounts of a parent or ultimate parent

company would be a consideration for

the court when sentencing a sufficientlyprofitable subsidiary for its own breaches

of the law.

What of the future?

Only time will tell just how high the fines

for health and safety offences committed

by large and very large organisations will

be. There is no doubt that all eyes in the

industry are now very much on the courts.

The new reality may be frightening when

such an organisation is found guilty of a

serious offence for which it is deemed to behighly or very highly culpable, when all bets

are off! Will the risk of receiving such huge

fines in the event of an incident reduce

the amount of injuries or fatalities? This

remains to be seen.

Surely the thought of a fine huge enough to

potentially put a company out of business

and/or the threat of imprisonment for

senior managers and director that fall far

short of the appropriate standard should

act as an incentive to proactively address

corporate health and safety concerns

as soon as possible (before an incident

occurs) and to ensure compliance with the

law at all times.

Kizzy Augustin is a senior associate at

Pinsent Masons LLP


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