Friday, 31 August 2012

X-Venture Update - Summer 2012


The London Olympics has focused the attention on event safety as never before against a background of a government sponsored review on health and safely law.  There is also uncertainty with regards to the approach that the HSE will take with their new remit to enforce construction safety at events and powers to charge businesses for their time in attending and investigating a breach of regulations.  Taken together these changes represent a significant change in the regulatory environment for the events industry.

 

HSE Enforcement of Construction Safety at Events

 

The enforcement of safety in construction activities has now been taken up by the HSE directly and will no longer, in theory, be enforced by the Local Authority (LA).  It was previously assumed by event safety professionals that this move prefaced the application of the Construction Design Management Regulations (CDM) to events, however, this is not the case.  The HSE has set up a working group to deal with event construction. 

 

The HSE is responsible for the enforcement of health and safety law in the UK.  For events this is usually delegated to the local authorities who have largely the same powers of enforcement as the HSE.   The London Olympics were the catalyst for a review by the HSE into event construction.  The HSE have decided that they will take on enforcement with regards to construction at events. 

 

The HSE report, ‘Identification of safety good practice in the event construction and deconstruction of temporary and demountable structures’ gives us an important window into their mind-set.  They reviewed six accidents and made six site visits.  These were all related to entertainment, festival or sporting type activities, one dating back to 1994.  There is not one mention of exhibitions except a reference to ‘other events’.  Drilling down into the report it is clear that some generalisations have been made concerning the events industry as a whole based on a very narrow focus of research.

 

Whilst the application of CDM is not envisaged, it is quite clear that a central theme of the report is a dislike of the perceived varied and ad hoc approach to management of events and a desire to impose some form of template in this regard which is worrying. 

 

On the other hand the HSE have a valid point as the events industry has not covered itself in glory with regards to health and safety in the past.  Also the findings of this report may be tempered with the findings of the working group over time.

 

The HSE have visited a lot of venues but as yet we have not seen any active enforcement.

 

HSE Fee for Intervention

 

The HSE proposes to introduce a Fee for Intervention (FFI).  It was due to come into force in April but this has now been postponed until October subject to parliamentary approval.  The regulations put a duty on the HSE to recover its costs for carrying out its regulatory functions from those found to be ‘in material breach of health and safety law’.  A ‘material breach’ is where in the opinion of the HSE inspector there has been a contravention of health and safety law that is serious enough to require them to notify the person in writing.  The proposed fee is an hourly rate of £124 chargeable to companies and not individuals.  It applies not only to time on site but any follow up work associated with the visit including investigations.

 

The idea behind it is that the government believes that businesses and organisations that break health and safety laws should pay for the HSE’s time in putting right, investigating and taking enforcement action.  The hope is that it will encourage compliance.

 

The principle of paying for law enforcement agencies to investigate a breach of law is not replicated in general law enforcement and a cynic would point to the 35% budget cut imposed on the HSE as the true rationale.  The following is an extract from the HSE guidance with regards to material breach:

 

Falls from height

Falls from height are a frequent and well-known cause of death, or serious injury such as broken bones and partial or total paralysis.

Some examples of failures might include:

·         not adequately planning and/or supervising work at height;

·         not ensuring workers are competent for work at height;

·         not choosing appropriate access equipment where falling from a height is possible;

·         not inspecting and maintaining access equipment, such as scaffolding, harnesses or ladders, to ensure it remains effective at preventing or reducing injury;

·         using forks or a pallet on the forks of a fork-lift truck for a person to work at height, instead of a suitable working platform; and

·         using damaged/defective ladders/stepladders, eg splits in timber ladders, cracked welds at rung/stile connections on metallic ladders, missing rungs or steps and missing anti-slip devices.

 

The full guidance can be found on the HSE website at


 

It is still possible that the exhibitions industry will not notice a difference because, with or without FFI, the HSE’s reach cannot currently encompass the whole events and exhibitions industry.  That said, the larger events with heavy construction could well receive a visit.

 

The HSE’s view will be heavily influenced by the Olympics and they could make unfair comparisons given LOCOG’s unparalleled access to resources.  There is a danger that the Olympics will raise the bar on event safety to levels which are not sustainable particularly in competition with other events business internationally.  Working at heights and general site management in terms of controlled access and site safety discipline will be issues which the HSE could target and many exhibitions would be vulnerable.

 

Another factor will be the reaction of venues and the role of the eGuide.  The eGuide may serve to assuage HSE concerns regarding the exhibitions industry’s ability to regulate itself.  Conversely the venues will not want trouble with the HSE and this will create a pressure for tighter controls.  Higher standards are desirable but they must be sustainable from a business perspective.

 

Recent governments have a poor record of producing legislation with unintended and unproductive consequences.  FFI may prove to be yet another example with the HSE using it to generate revenue to fill a funding gap and unfairly targeting industries such as exhibitions and events. 

 

Directors’ Liabilities

 

Previous updates have commented upon the apparent developing trend to hold company directors personally and legally accountable for health and safety failings.  The HSE have now revealed that the prosecution of directors under s.37 of HASAWA has increased by 400% in the last 5 years.  The HSE denies that this a targeted campaign but point to wider changes in the legal framework under which directors operate such as the Corporate Manslaughter and Corporate Homicide Act and the Health and Safety Offences Act.  Both of these were covered in previous updates.  Conversely prosecution of employees under s.7 has dropped sharply indicating a definite shift, deliberate or otherwise, to focus legal sanction against company directors.

 

Löfstedt Review

 

Professor Löfstedt was tasked by the Government to review UK health and safety legislation and formerly reported at the end of 2011.  He concluded that there is no need for a radical overhaul of health and safety legislation which he found to be broadly fit for purpose.  He did, however, propose a review of ‘strict liability’ offences giving rise to civil compensation even where the employer has done all that is reasonably practicable to prevent harm1. 

 

Overall the government’s desire for a common sense approach to health and safety is to be welcomed; however this is not likely to make any significant difference to the events industry currently.

 

Fire Safety Prosecution

 

Following a fire in 2008, the first case of a trial by jury under the Regulatory Reform (Fire Safety) Order has seen a hotel and its director prosecuted and fined for a failure to conduct a suitable and sufficient fire risk assessment and a number of other offences under the order.  The director was ordered to pay fines and costs of £230,000.  The case is important because it is yet another example of the fire authorities taking enforcement action and prosecuting a venue for public endangerment.  Fire legislation is regularly breached, particularly on the build up of exhibitions and venues and organisers are vulnerable to enforcement action.

 

eGuide

 

The latest eGuide has just been republished.  This rotation has seen some significant revisions.  ACC Liverpool, AECC and HIC Harrogate have adopted the guide.  This has meant that variations in Scottish law have had to be included to accommodate the AECC.  The eGuide committee has been restructured with the formation of a technical committee to review and implement updates and revisions.  This will speed up the process of responding to end user requests for revisions and incorporating legislative changes.

 

Note

 

1.     Stark v Post Office.  The Post Office was found liable for the injuries sustained by a postman after he fell off his bike even though the defect which caused the fall was undetectable.  The court ruled that the duty to maintain work equipment in a safe condition was absolute and as the bike was broken that duty had been breached.

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