ARHM – Winter Seminar

28 November 2013

Health and Safety Update and Dos and Don’ts

Esme Saynor and Rebecca Roffe – 28 November 2013

Overview

• General Health and Safety Update– The Health and Safety at Work Act– Assessing the risk – Working with contractors

• Health and Safety in Property Management– Safety of non-employees generally– Asbestos– Fire Safety

• General news

• Questions

GENERAL HEALTH AND SAFETY UPDATE

Regulatory Context

• Penalties for breaches of health and safety legislation are increasing steadily with the current record fine for a single offence being £15m imposed on Transco for breach of S.3 HSWA 1974.

• Shell Plc was fined almost £1m following an accident, even though nobody was injured.

• Even if prosecutions do not ensue, simply being investigated can cause a drop in an organisation’s morale.

• Having a good health and safety record can help if something bad does happen.

Health and Safety at Work Act 1974– The Relevant Duties

• Section 2: Employers duties to employees

• Section 3: Employers duties to non-employees

• Section 4: Duties to non-employees in respect of premises

• Section 37: Offences by bodies corporate – ‘consent, connivance, neglect’

Embedding safety principles within a business

• Set the right ‘tone at the top’• HSE Guidance entitled ‘Leading Health and Safety at Work’ was

originally published in 2007 in consultation with the institute of directors.

• Sets three ‘essential principles’ that underpin good health and safety performance:

– Strong and active leadership– Worker involvement and engagement– Assessment and review

Employer Responsibilities

• s.2(1) “It shall be the duty of every employer to ensure, so far as it is reasonably practicable, the health, safety and welfare at work of all his employees”.

• s.3 “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, SFAIRP, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety”.

– Contractors– Residents– Members of emergency services, neighbours, passers by

and the public at large

What is risk?

• “Risk is a different word from the word danger and it has a different meaning. It means, in the circumstances of this case, a possible source of danger”.

– R v Board of Trustees of the Science Museum [1993]

• The risk must be material, not fanciful or trivial

– The Queen v Chargot Ltd [2007]

• Whether a risk is material is down to the jury to decide

– Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R [2011]

• Imposes a duty on employers to think deliberately about things which are not obvious

What to assess?

• The duty to assess risk extends to:– Risks to young persons (18 years or below)– New or expectant mothers (within 6 months of giving birth) – Lone workers or those working overseas– Disabled people– Inexperienced workers

• Risk reviews relate to the extent and nature of the risks involved and the likelihood of creeping changes (as opposed to a major change which would automatically justify a review)

Risk Assessment – Dos and Don’ts

• The Health and Safety Executive – HSE – provide 5 steps to effective risk assessment:

1. Identify hazards2. Assess the risks

- Who might be harmed and how?3. Eliminate or reduce the risks

- Are existing precautions adequate or should more be done?

- SFAIRP 4. Document all findings and actions taken5. Undertake ongoing evaluation

- Review your assessment every year or if there are any changes to equipment, substances or procedures. Revise if necessary

Penalties for breach of HSWA

• Health and Safety (Offences) Act 2008 increased penalties– Magistrates: £20,000 maximum fine– Crown Court: Unlimited fine– Some imprisonable offences– Disqualification orders– Costs orders

Employer Responsibility under the HSWA – General Dos and Don’ts

• DO have effective health and safety management systems– Risk assessment, systems of work, written policies and

procedures– Roles and responsibility defined and understood– Provide information and training for employees & contractors– Provide the right workplace facilities

• DON’T forget to – Communicate the policies and procedures effectively– Review and update policies and procedures, monitoring and

compliance– Keep records of training, compliance assessments and risk

assessments– Review emergency procedures regularly

• s.37 Health and Safety at Work Act 1974• “Where an offence committed by a body corporate is proved to

have been committed:

– with the consent or connivance of; or

– as attributable to any neglect on the part of;

• any director, manager, secretary or other similar officer of the body corporate, he as well as the body corporate shall be guilty of that offence”.

Individual Liability

Scope of s.37 duty

• What is connivance?

– Doesn’t amount to actual consent to the offence but a failure to take any steps to prevent or discourage it i.e. ‘wilful blindness’.

• What is consent?

– Must have known the material facts which constituted the offence and agreed to its conduct (R v Chargot [2007]).

• What is neglect?

– Ask whether the accused failed to take steps to prevent an offence by the company and the taking of those steps fell within the scope of his duties.

• Who is a manager?

– A manager is someone who is responsible for deciding corporate strategy and policy. (R v Boal [1992])

Corporate manslaughter

• Corporate Manslaughter and Corporate Homicide Act 2007S.1

• “An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised:

– cause a persons death, and– amounts to a gross breach of a relevant duty of care it owed

to the victim”.

Gross Breach

• “A breach of a duty of care by an organisation is a gross breach if the conduct alleged amounting to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances”.

• Jury to decide by considering a list of factors

Factors for the jury to consider

• The jury must take into account– Whether the organisation failed to comply with health and

safety legislation– How serious that failure was– How much of a risk of death it posed

• The jury may take into account– Any attitudes, policies, systems or accepted practices in the

organisation that were likely to have encouraged a management failure or to have produced tolerance of it.

– Any health and safety guidance that relates to the alleged breach

– Training of employees, adequacy of equipment

Penalties

• Corporate Manslaughter and Corporate Homicide Act 2007– Unlimited fine– Publicity order– Remediation order– Compensation order– Prosecution costs order– Victim surcharge

R v Cotswold Geotechnical Holdings Ltd [2011]

– First successful prosecution of a company under the Corporate Manslaughter and Corporate Homicide Act 2007

– Concerned the death of a young, unsupervised employee– Company fined £385,000, the equivalent of 250% of its

turnover – On dismissing an appeal against the fine, the judge said

that it was unfortunate but ‘unavoidable and inevitable’ that the company would probably have to go into liquidation to pay the fine

Managing Contractors and Outsourcing

• Need to satisfy self that contractors are competent, that they have sufficient skills and knowledge to do the job safely and without risks to health and safety.

• Great importance in choosing a competent team and working safely and efficiently together.

• The level of risk will depend on the nature of the job.

• Whatever the risk, need to consider the health and safety implications of the job you want done.

• This will involve:– Selecting someone suitable to do the job– Assessing the risks– Deciding what information, instruction and training is required– How co-operation and co-ordination between all parties is achieved– How the workforce is to be consulted – The level of management and supervision required

How can you manage the risk in contracting?

• DO– Give credit in tenders for levels of risk management and

ethical policies– Consider having an overall policy to only contract with third

parties who meet minimum standards– Check for ISO accreditation or use of international

regulations

• DON’T– Use third parties who are not undertaking appropriate

training

HEALTH AND SAFETY ISSUES IN PROPERTY MANAGEMENT

Control

• s.4 Health and Safety at Work Act 1974 – Where a person has, by virtue of a contract or tenancy, an obligation of

any extent in relation to maintenance or repair to premises or access, that person will have control.

– Such persons must provide for the safety of non-employees who come into contact with the premises.

• More than one person may have control over premises: Austin Rover Group Ltd v HM Inspector of Factories [1990]

• Therefore it is important to identify who has control in the contract by identifying who has the repairing obligation.

• Especially important in landlord-tenant relationships

– A full FRI lease should put the repairing and maintenance obligations on to the tenant.

Asbestos

• Under the general health and safety regime, employers and property owners have duties to protect people from exposure to asbestos fibres

• There is also a specific legal duty to manage asbestos under the Control of Asbestos Regulations 2012, Regulation 4.

• Which buildings are affected?– All non-domestic buildings whatever type of business.– The common areas of residential rented buildings

• Regulation 4 imposes an obligation on the "dutyholder" to:– Determine whether asbestos is present in a building or is likely to be

present by carrying out a risk assessment– Put in place action plans and systems to manage any asbestos that is or is

likely to be present.

The “dutyholder”

• What is the “dutyholder”?– You are a dutyholder if you own, occupy, manage, or have any contractual

responsibilities for maintenance or repair of non-domestic premises– Even in the absence of agreement, all parties which control access or

maintenance of a building could still be liable where it can be shown that asbestos has not been managed.

• It may be that the primary responsibility for maintenance and repair rests with the tenant, but the freeholder will need to recognise that it may remain a dutyholder in certain circumstances:

– e.g. Where a freeholder leases the whole of a property, the freeholder may retain some obligation to maintain or repair the structure/common parts

• There can be multiple dutyholders in any given scenario, although one party is usually expected to be primarily liable

• Regulatory Reform (Fire Safety) Order 2005 – Applies to all non-domestic premises other than a restricted

number of exceptions.– Includes vacant buildings– Includes external areas (car parks, loading bays etc.)

• The ‘responsible person’ has the duties under the Order

• Responsible person means– The employer, if the workplace is under his control– Otherwise the duties are extended to any person who has control

of the premises– The owner, where the person in control of the premises does not

have control in connection with the carrying on by that person of a trade, business or undertaking

Fire safety

Duties

• To take general fire precautions to ensure, so far as is reasonably practicable the safety of employees

• In relation to non-employees, to take precautions that may reasonably be required in the circumstances of the case to ensure that the premises are safe

• To carry out a risk assessment and keep this under review

• Not only to keep fire exits clear and emergency lighting on!

Regulators' enforcement powers

• Alterations notice– Served if the enforcing authority believes that the premises constitute a

serious risk if a change is made to premises– Where a notice has been served the responsible person must notify the

enforcement authority of the proposed changes to the premises and the fire risk assessment

• Enforcement notice– Served if responsible person has not, in the opinion of the enforcing

authority, complied with any provision of the order– Will require the responsible person to remedy the failure

• Prohibition notice– Served if the enforcing authority holds the opinion that the use of the

premises involves or will involve a risk so serious that the use of the premises ought to be prohibited or restricted

Offences

• It is an offence for a responsible person to fail to comply:

– With requirements, thereby placing one or more persons at risk of death or serious injury in case of fire

– With any requirements of alteration, enforcement or prohibition notices

– In relation to the provision of luminous tube signs (Regulatory Reform (Fire Safety) Order 2005 art.37)

• A person found guilty of one of these offences will be liable

– On summary conviction to a fine not exceeding the statutory maximum; or

– On conviction on indictment to a fine or to imprisonment for a maximum of 2 years

London Fire and Emergency Planning Authority v New Look Retailers Ltd (2010)

• A fire broke out on the second floor of New Look’s Oxford Street store resulting in 400 people being evacuated.

• The cause of the fire was unknown and there was no evidence that it was due to the negligence of New Look

• However, the court imposed a fine of £250,000 for not having an adequate risk assessment and £150,000 for inadequate safety training (plus costs)

• The case highlights the fact that there is now great scope for the courts to punish for a potential outcome of a fire

Health and Safety for Property Management – Dos and Don’ts

• DO– Ensure risk assessments are conducted and reviewed by

appropriately qualified members of staff– Put in place clear lines of reporting and monitoring of

compliance– Ensure improvements required to the buildings to keep

them legally-compliant are done in a timely fashion and adequate records are kept of all works

– Review/update asbestos surveys where required and make these available to all contractors coming on-site

• DON’T– Assume the tenant is always liable!

HEALTH AND SAFETY NEWS

Recent updates

• Review of Approved Codes of Practice

• New guidance for leaders on “Managing for Health and Safety”

• Fee for Intervention scheme

QUESTIONS?

The reality of Solving Leaseholder's problems

Michaela Mason and Paul Pinder – 28 November 2013

How a conveyancing transaction works

1. Pre-contract stage2. Post-contract (or pre-completion stage)3. Post completion stage

Pre-contract stage

• Title• Searches• Buyer’s finances• Draft contract/lease

Exchange of ContractsPost Contract and Pre-Completion Stage

• Draft lease• Buyer’s lender?• Preparation for completion• Mortgage?

Post Completion

• Stamp Duty Land Tax• Registration at Land Registry

Post-Contract Stage

• Draft lease• Buyer’s lender• Preparation for completion

Leases-The Main Elements

• Premises and Rights• Rent• Service Charge• Insurance• Alterations• Alienation• Landlord’s Obligations

Premises and Rights

• Flat Leases• House Leases

Rent andService Charge

• Rent• Payment• Services• Calculation and Payment

Insurance

• Buildings Insurance• Third Party Liability

Alterations and Alienation

• Lease of part or whole?• General restrictions• - in last years of term• - consent required• - fees

Landlord’s Obligations

• Insurance• Services• Repair of Estate and/or Building• Restrictions on Dealing• Other Leases

BECKETT ROAD

POZZO WOOD

MCKELLENSHIRE

DATE; 26/11/13

SCALE; 1:500

SITE & GROUND FLOOR

POZZO WOOD

MCKELLENSHIRE

DATE; 26/11/13

SCALE; 1:500FIRST FLOOR SECOND FLOOR

Questions?

Real Estate Dispute Resolution

Paul Pinder, Senior Associate

Residential leases and disputes

• Claims for rent

• Limits on service charges

• Rights to manage

• Lease extensions

Ground rents

• Section 23(2) Landlord and Tenant Act 1927

• Sections 47 and 48 Landlord and Tenant Act 1987

• Section 166 Commonhold and Leasehold Reform Act 2002

Service charges

• Qualifying long term agreement £100

• Works £250

• Section 20 procedure

Right to manage

• Commonhold and Leasehold Reform Act 2002

• Get together and oust the manager and appoint their own

Lease extensions

• Leasehold Reform, Housing and Urban Development Act 1993

• Right to a new lease with a 90 year extension

Forfeiture

• Sections 167 and 168 Commonhold and Leasehold Reform Act 2002

• Protection from Eviction Act 1977

• Ability to serve a section 146 notice

Nuisance

• Serve a section 146 notice?

• Court route

• Capacity of tenant

Any questions?

When the Inspector Calls

Lukas Rootman - 28 November 2013

• Live issues

Live issues

• Asbestos

• Corporate Manslaughter

• Fire legislation

• Noise & Vibration

• Stress

• Work at Height

• Workplace transport

• Slips/trips

• Better Backs

• Construction

• Legal framework

Criminal

• Negligence

• Nuisance

• Contract

• Competition etc.

International Law

EU Law

UK Law

Civil Criminal

International LawInternational LawInternational Law

• HSW 74

•relevant statutory instruments

Public

•Human Rights

•Judicial Review

•Freedom of Information

“Legal” Benchmarks

• Principal

– Acts eg HSWA 1974

– Regulations eg MHSW 1999

– Approved Codes of Practice eg COSHH ACoP

– Guidance eg HSG 65

• Other

– Industry standards

– In-house

The Regulators – England & Wales

• Health & Safety Executive

• Local Authorities

• Fire and Rescue Services

• (Environment Agency)

The Police

• Protocol regarding deaths at work

• PACE procedures relevant to all regulators

Coroners

• Independent Judicial Officers• Inquire into deaths

– violent– unnatural– sudden and unknown

• Inquest not a trial• Coroner can report death to the appropriate authority

Coroner’s Inquests

• May be questioned by “Properly Interested Parties”– insurers– inspectors– public

• Juries held where death at work• Verdicts

– Not determine blame– Not identify Criminal/Civil Liability

• Investigations

Stages of the investigation

• Prior to the visit• During a visit• During an investigation• Interviews• After a visit

• Stage 1.

• Prior to a visit

Prior to a visit

• Understand what the risk are– Health & Safety (Injury/harm/damage)– Business (Commercial, business continuity)

• Know the policies & systems– Company general– Site/Local– [Preparation is vital. First impressions count]

Think why will an inspector call?

• Routine inspection• Response to an incident• Pre-arranged investigative visit• Assessment the risks in new businesses or premises• Target certain geographical areas or sectors • Random ‘spot checks’ on compliance • Keep abreast of new developments and processes • HSE training visit

Why you?

• HSE concentrate where the risks are highest

• Where they will have greatest impact

• Where they have evidence that performance is poor

• You operate in a hazardous industrial sector

• [Do any of these apply to you?]

• Stage 2.

• During a visit

Manage the visit

• Agree and discuss the purpose of the visit• Always work to & highlight your strengths• Be professional & courteous• Try and plan & agree points of contact

• [But remember…]

Powers of Inspectors*

• Entry at any reasonable time

• Take Constable if necessary

• Authorise others to enter eg gas, electricity

• Examine and make investigations

• * Note: Many more listed under HSW74’ s20.

Relationships

• It suited the last Inspector [But….]– Regulator free to change its mind – Need for constant review– Onus always rests with employer

• HSE is indemnified against all/part of any damages– act complained of within powers– duty as Inspector gave entitlement

• Stage 3.

• During an investigation

Access to documentation

• Regulators’ powers

– require production of relevant documents

– privileged documents exempt

– what is privileged?

• Obstruction of Inspector

• Note: House of Lords Decision

• "legal advice privilege“ and "litigation privilege".

Health warning

• Special care needs to be taken with– E-mails– SMS text messaging– Voice mail – Consultants reports– Glib post accident comments

• Every aspect of the accident investigation must be carried out professionally

• Stage 4.

• During an interview

Interviews/Statements

• 3 types

– Witness statements

– Under Section 20 of HSWA 1974

– Under PACE

• Human Rights Implications

• Excluding evidence

Witness statements

• Primary purpose is to gather factual information– Voluntary under Criminal Justice Act 1967– First hand details only – no hearsay– Signed copy given to witness

Section 20 Interviews

• Primary purpose is information gathering– Compulsory - no right of silence– Interviewee’s right to have someone present– Potential offence under Section 33

• Protection given under principle of right not to self incriminate

PACE Interviews

• Primary purpose is to gather information as a suspect

(individually/company)

– A caution must be read

– A right of silence exists – however adverse inference may

be drawn

– Legal advice must be taken

• Most H&S offences are not arrestable, so a PACE interview can

be refused. (Always take legal advice before refusing)

Take note

• Check/ask what type of interview it is

• Think about the need for legal advice

• Be aware of conflicts of interest?

• Avoid any suspicion of obstruction.

• Stage 5.

• After a visit

After a visit

• Always record all contacts & visits by regulator.• All significant issues should be raised with line management• Write up a summary of the visit• Contact the HSE to confirm your understanding of the outcome

of the visit• If an enforcement is possible, be prepared to request legal

advice

Internal Investigations

Why investigate

• Moral/Economic case– Not in dispute

• Legal requirements– General compliance (RIDDOR)– Arrangements (Plan:organise:control:monitor:review)

• Civil litigation• Insurance

Basic principles

• Identify causes– Immediate: Underlying: Root

• Principles of HSE guidance should be followed– HSG65/HSG245/MHSW99

• Company should adopt a consistent risk based approach• Line managers must be trained in procedures

Accident reports – the smoking gun

• “We have been playing Russian Roulette…”

• “Accident waiting to happen”

• “We were lucky it wasn’t a much more serious injury…”

Reports•Any documentation produced may be used in proceedings and may have liability implications Therefore, when recording incidents it is essential that records are:

• factual• concise• accurate

•[If the matter being reported is of a serious nature, legal advice on the level of reporting should be sought]

Access to documentation

• Regulators’ powers

– require production of relevant documents

– privileged documents exempt

– what is privileged?

• Obstruction of Inspector

• Note: Recent House of Lords Decision

• "legal advice privilege“ and "litigation privilege".

Enforcement & Prosecution

Do Inspectors have to take action?

• Some discretion – enforcement policy

• Code for Crown Prosecutors

• Duty to the public

• Does the Human Rights Act make a difference?

Enforcement options

• Verbal advice• Written advice• Improvement/Enforcement notice• Prohibition notice/Injunction• Caution• Prosecution• Withdraw/modify licence, authorisation

• Note: Option selected dependent on facts (& politics) of each case

Key stages of prosecution

• Incident/contact

• Investigation

• Interviews

• Inquest

• Summons

• Disclosure eg Friskies schedules

• Expert investigations

• Plea

• Negotiations

• Court

• Sentencing

Aggravating features

• Failure to heed warnings• Where defendant deliberately flouts legislation for financial

reasons• Offence results in fatality• Previous similar offences

Mitigating factors

• Prompt admission of liability and guilty plea• Steps taken to remedy deficiencies• A good safety record• Ready co-operation

Open Forum

Contact details

LUKAS ROOTMAN PartnerT +44 (0)114 279 4022l.rootman@nabarro.com

ESME SAYNORAssociateT +44 (0)114 279 4245e.saynor@nabarro.com

REBECCA ROFFEAssociateT +44 (0)114 279 4040r.roffe@nabarro.com