Thursday 14 November 2013

A review of IOSH forum on implentation of CDM 14 in the events industry


The IOSH Sports Grounds and Events Group networking event to discuss CDM took place on 12th November and attracted participation from the event safety community across the spectrum from festivals to theatres and a significant element from the exhibition world.  The event was opened by the Chief Executive of IOSH, Jan Chmiel followed by a keynote presentation by Gavin Bull, the HM Inspector at the HSE responsible for implementing CDM 14.  The meat of the event comprised presentations by the eGuide (exhibitions and conferences), A Guide (Arenas), Purple Guide (festivals and outdoor events) and the ABTT (theatres). 

 

The implementation of CDM 14 is behind its original timetable so the HSE did not actually have anything new to say and did not present a case for change or highlight any benefits beyond compliance for its own sake.  The various industry guides agreed to incorporate the changes as and when they come into effect without raising any of the issues that might arise.  In fairness, since the consultation has not taken place it was difficult to get into specifics but it would have been helpful to get a view of some of the challenges perceived by the various event sector bodies at industry level.  There was a prevailing view that we are all compliant anyway and all we need to do is role map across to the various CDM functions.

 

This view did not go unchallenged and there was some spirited questioning from the floor which highlighted that the HSE’s presentation raised more questions than it actually answered.  Gavin Bull dismissed a question regarding Safety Advisory Groups (SAG’s) as ‘just licensing’ and gave a very opaque answer on who exactly the enforcing authority would be on site, thus ignoring the very significant potential conflict of regulatory oversight that could arise.  The attendance list was a veritable who’s who of the big players but there was no consideration of the challenges faced by small events from conferences to country fairs that do not have the resources to conduct ‘role mapping’ exercises.  Simplification is nominally positive but removing the ACOP does mean that a lot will be down to interpretation and that will pose challenges for all and disadvantage smaller concerns.

 

There were some significant absences from the debate. The aeo was not represented and with one notable exception (Reed Exhibitions) neither were any of the large exhibition organisers.  Also absent were any of the larger players from the exhibition general contracting sector who will have a significant part to play in complying with these regulations.  These voices need to be heard and must participate in the consultation when it is launched.

 

There was much discussion around the CDM roles of Client, Designer, Principal Contractor and the CDM Coordinator.  One accepted view was that the event organiser could be all of these things.  Then again so could a company building a large complex stand within an event.  One glaring omission was the recognition that CDM was designed to be applied to building sites which could be in place for many months or years. An event transforms from construction to finished produce and back to construction activity in a matter of days and is in reality a collection of lots of different building sites with a plethora of clients and designers not just one.  The HSE kept returning to the mantra of the definition of construction.  The reality is, however, that whilst conceptually similar, the context at events is entirely different.

 

IOSH should be congratulated in in pulling together this forum and such a diverse group of serious event safety professionals.  Whilst we may not have got the clarity of answers we wanted, it is to the HSE’s credit that they have engaged with the events industry across the spectrum.  Many attending not hitherto familiar with this issue will have learned a great deal and there is no doubt that the 12 week consultation when it comes will be more robust for it. 

Wednesday 13 November 2013

October Update 2013


We face a perfect storm of a new regulator in the form of the HSE, armed with new and potentially quite prescriptive regulations with a financial incentive to apply the letter of the law in an industry where safety is often a matter of judgement.

 

Duty of Care

 

I often begin training by pointing out that few industries other than those involved in public transport have the scale of duty of care that we regularly take on in the events industry; often placed on relatively junior shoulders.  Daily we deal with exposure of large numbers of people to significant risk.  Our key control is to train those with such responsibilities to assess and manage those risks.  I am often asked about how to manage the risk of those who seem to wilfully expose themselves and others to serious harm and the extent to which we are liable.  The recent tragic case of Georgia Varley is case in point and appears to set a worrying precedent.

 

In 2011 Georgia was killed when she fell between the train and the platform as it was leaving the station.  She had a blood-alcohol level nearly 3 times the drink-drive limit, had taken the drug mephedrone, was wearing high-heeled shoes and having alighted from the train leaned back against it.  The guard, Christopher McGee, failed to fully appreciate the situation and allowed the train to depart.  He was prosecuted for gross negligence manslaughter and sentenced to 5 years’. 

 

Only the jury knows why they convicted him but on the face of it Mr McGee paid a terrible price for what appears to be a momentary lapse in concentration rather than an act of wickedness.  It serves to remind us just how high the stakes can be in an industry where we constantly battle against, and yet are held responsible for, mindless acts of recklessness.

 

HSE enforcement of event construction and the application of Construction Design Management Regulations (CDM) at Events

 

I delayed the ‘summer update’ in the hope of getting something concrete on CDM.  After a series of meetings with event professionals in the spring, the project went quiet over the summer while the HSE considered their options and to my knowledge there have been no new developments although some news has come following an HSE meeting with the National Theatre.

 

The draft proposal will shortly be available for consultation although no date has been set.  The release of the document has been delayed because the HSE are debating some key points centring on how the key roles in CDM Regulations such as directors’ duties will be assigned to event management functions.  There is also recognition that removing the Approved Code of Practice which interpreted the regulations, could be problematic for small companies who lack the resources to do this for themselves. 

 

One prevailing view is that this is simply a tidying up of an anomaly whereby construction regulations did not previously apply to event construction.  My concern is that the HSE have not articulated a business case on the basis of risk versus cost as to why this is necessary for the events industry much less the exhibitions and conferences sector.  The key driver is to fall in with Europe although I have yet to see any evidence of any kind of CDM type regulation applying to European events.

 

Facilitated by the AEV, the major exhibition organisers, plus some of the smaller event companies who have picked up on this, have been engaged with the HSE consultative process.  Notwithstanding I have been dismayed by how many companies particularly the larger contracting companies appear to be totally ignorant of this import potential change to the way we are regulated.  It is vital that when the consultative document is released it is reviewed and commented upon by all event companies with a significant exposure to event construction.

 

Fee-for-intervention (FFI)

 

To recap, new regulations put a duty on the HSE to recover its costs for carrying out its regulatory functions from those found to be ‘in material breach1 of health and safety law’.  The fee is an hourly rate of £124 and applies not only to time on site but any follow up work associated with the visit including investigations.  Now that the HSE have taken over responsibility for enforcement of event construction it opens up a new avenue of enforcement action by the HSE at build up and break down.  The HSE have issued a list of 9 key areas on which they will focus and three of these, use of ladders, work at height, and workplace transport – particularly the separation of work vehicles and pedestrians – should give us cause for concern.  As well as unannounced visits, RIDDOR reports are being used as the cue for the HSE to intervene often accompanied by a request to see the company’s own internal investigation report.  On IOSH courses we continually stress the need for careful handling and wording of these documents and in response to demand X-Venture now runs a one day course in dealing with serious accidents.

 

A freedom of information request reported by UBM’s Safety and Health Practitioner2 has revealed a yield of £857,000 to the HSE in the first round up to January 2013, up £100,000 on the previous round.  The average invoice was £474.  Although an unwelcome unbudgeted item, it is unlikely that the costs per se will be an issue for event companies.  However it is easy to see how, armed with new CDM Regulations the HSE could come to regard the events industry as a lucrative source of income and thus FFI will encourage HSE enforcement in the event sector.  Anecdotal evidence from the summer festival season, which saw significant increase in HSE’s activity and the issuing of some Prohibition notices as a result, should give us cause for concern.  Contractors appear to have borne the brunt of this, in one case being issued a notice for failure to put a mid-rail on a scaffold that was not even being used for access.

 

 

Corporate Manslaughter

 

There has been much comment in safety journals that following the introduction of the Corporate Manslaughter and Corporate Homicide Act the expected dozen or so cases per year simply did not materialise.  Since its introduction in 2008 only 3 cases have been concluded.  The prosecuting authorities, however, are getting the measure of this relatively new law and 63 new cases were being investigated in 2012 up from 45 in 2011.  Although the law specifically targets companies and not individuals, a number of individuals, particularly directors, have been prosecuted under the related charge of Gross Negligence Manslaughter or under S.37 of the Health and Safety at Work Act3. This has been covered extensively in previous updates (still available on our blog site, xventureblog.blogspot.co.uk).  The lesson as always is to ensure that senior managers involve themselves personally in ensuring that proper controls are in place and ensuring these arrangements, and their involvement is accurately documented.

 

Overall comment

 

As noted in the last update, one of the early promises of this government was a bonfire of overly restrictive and burdensome regulations on business in general yet in the events industry precisely the reverse seems to be happening.  We face a perfect storm of a new regulator in the form of the HSE, armed with new and potentially quite prescriptive regulations with a financial incentive to apply the letter of the law in an industry where safety is often a matter of judgement.  Evidence from the summer festival season seems to bear this out.  Notwithstanding there is still much to play for and informed and robust engagement in the consultation period for the new CDM regulations will influence the outcome.  If we fail to grasp the nettle we will only have ourselves to blame if the resulting regulation does not suit us.

 

1.     According to the HSE’s FFI guidelines, a material breach is defined as a contravention of health and safety law that requires an inspector to issue a written notice to the duty-holder.  This may be a notification of a contravention, an Improvement or Prohibition Notice or a prosecution, and must include the law to which the inspector’s opinion relates; the reasons for that opinion; and the notification that a fee is payable to the HSE.

2.     ‘Readiness to query FFI costs, but fairness doubts remain’ – July 2013

3.     Section 37 provides for the personal prosecution of members of management with director level responsibilities where they can be charged as well as, or instead of, the employer if the offence in question was due to their consent, connivance or neglect.

October Update 2013


We face a perfect storm of a new regulator in the form of the HSE, armed with new and potentially quite prescriptive regulations with a financial incentive to apply the letter of the law in an industry where safety is often a matter of judgement.

 

Duty of Care

 

I often begin training by pointing out that few industries other than those involved in public transport have the scale of duty of care that we regularly take on in the events industry; often placed on relatively junior shoulders.  Daily we deal with exposure of large numbers of people to significant risk.  Our key control is to train those with such responsibilities to assess and manage those risks.  I am often asked about how to manage the risk of those who seem to wilfully expose themselves and others to serious harm and the extent to which we are liable.  The recent tragic case of Georgia Varley is case in point and appears to set a worrying precedent.

 

In 2011 Georgia was killed when she fell between the train and the platform as it was leaving the station.  She had a blood-alcohol level nearly 3 times the drink-drive limit, had taken the drug mephedrone, was wearing high-heeled shoes and having alighted from the train leaned back against it.  The guard, Christopher McGee, failed to fully appreciate the situation and allowed the train to depart.  He was prosecuted for gross negligence manslaughter and sentenced to 5 years’. 

 

Only the jury knows why they convicted him but on the face of it Mr McGee paid a terrible price for what appears to be a momentary lapse in concentration rather than an act of wickedness.  It serves to remind us just how high the stakes can be in an industry where we constantly battle against, and yet are held responsible for, mindless acts of recklessness.

 

HSE enforcement of event construction and the application of Construction Design Management Regulations (CDM) at Events

 

I delayed the ‘summer update’ in the hope of getting something concrete on CDM.  After a series of meetings with event professionals in the spring, the project went quiet over the summer while the HSE considered their options and to my knowledge there have been no new developments although some news has come following an HSE meeting with the National Theatre.

 

The draft proposal will shortly be available for consultation although no date has been set.  The release of the document has been delayed because the HSE are debating some key points centring on how the key roles in CDM Regulations such as directors’ duties will be assigned to event management functions.  There is also recognition that removing the Approved Code of Practice which interpreted the regulations, could be problematic for small companies who lack the resources to do this for themselves. 

 

One prevailing view is that this is simply a tidying up of an anomaly whereby construction regulations did not previously apply to event construction.  My concern is that the HSE have not articulated a business case on the basis of risk versus cost as to why this is necessary for the events industry much less the exhibitions and conferences sector.  The key driver is to fall in with Europe although I have yet to see any evidence of any kind of CDM type regulation applying to European events.

 

Facilitated by the AEV, the major exhibition organisers, plus some of the smaller event companies who have picked up on this, have been engaged with the HSE consultative process.  Notwithstanding I have been dismayed by how many companies particularly the larger contracting companies appear to be totally ignorant of this import potential change to the way we are regulated.  It is vital that when the consultative document is released it is reviewed and commented upon by all event companies with a significant exposure to event construction.

 

Fee-for-intervention (FFI)

 

To recap, new regulations put a duty on the HSE to recover its costs for carrying out its regulatory functions from those found to be ‘in material breach1 of health and safety law’.  The fee is an hourly rate of £124 and applies not only to time on site but any follow up work associated with the visit including investigations.  Now that the HSE have taken over responsibility for enforcement of event construction it opens up a new avenue of enforcement action by the HSE at build up and break down.  The HSE have issued a list of 9 key areas on which they will focus and three of these, use of ladders, work at height, and workplace transport – particularly the separation of work vehicles and pedestrians – should give us cause for concern.  As well as unannounced visits, RIDDOR reports are being used as the cue for the HSE to intervene often accompanied by a request to see the company’s own internal investigation report.  On IOSH courses we continually stress the need for careful handling and wording of these documents and in response to demand X-Venture now runs a one day course in dealing with serious accidents.

 

A freedom of information request reported by UBM’s Safety and Health Practitioner2 has revealed a yield of £857,000 to the HSE in the first round up to January 2013, up £100,000 on the previous round.  The average invoice was £474.  Although an unwelcome unbudgeted item, it is unlikely that the costs per se will be an issue for event companies.  However it is easy to see how, armed with new CDM Regulations the HSE could come to regard the events industry as a lucrative source of income and thus FFI will encourage HSE enforcement in the event sector.  Anecdotal evidence from the summer festival season, which saw significant increase in HSE’s activity and the issuing of some Prohibition notices as a result, should give us cause for concern.  Contractors appear to have borne the brunt of this, in one case being issued a notice for failure to put a mid-rail on a scaffold that was not even being used for access.

 

 

Corporate Manslaughter

 

There has been much comment in safety journals that following the introduction of the Corporate Manslaughter and Corporate Homicide Act the expected dozen or so cases per year simply did not materialise.  Since its introduction in 2008 only 3 cases have been concluded.  The prosecuting authorities, however, are getting the measure of this relatively new law and 63 new cases were being investigated in 2012 up from 45 in 2011.  Although the law specifically targets companies and not individuals, a number of individuals, particularly directors, have been prosecuted under the related charge of Gross Negligence Manslaughter or under S.37 of the Health and Safety at Work Act3. This has been covered extensively in previous updates (still available on our blog site, xventureblog.blogspot.co.uk).  The lesson as always is to ensure that senior managers involve themselves personally in ensuring that proper controls are in place and ensuring these arrangements, and their involvement is accurately documented.

 

Overall comment

 

As noted in the last update, one of the early promises of this government was a bonfire of overly restrictive and burdensome regulations on business in general yet in the events industry precisely the reverse seems to be happening.  We face a perfect storm of a new regulator in the form of the HSE, armed with new and potentially quite prescriptive regulations with a financial incentive to apply the letter of the law in an industry where safety is often a matter of judgement.  Evidence from the summer festival season seems to bear this out.  Notwithstanding there is still much to play for and informed and robust engagement in the consultation period for the new CDM regulations will influence the outcome.  If we fail to grasp the nettle we will only have ourselves to blame if the resulting regulation does not suit us.

 

1.     According to the HSE’s FFI guidelines, a material breach is defined as a contravention of health and safety law that requires an inspector to issue a written notice to the duty-holder.  This may be a notification of a contravention, an Improvement or Prohibition Notice or a prosecution, and must include the law to which the inspector’s opinion relates; the reasons for that opinion; and the notification that a fee is payable to the HSE.

2.     ‘Readiness to query FFI costs, but fairness doubts remain’ – July 2013

3.     Section 37 provides for the personal prosecution of members of management with director level responsibilities where they can be charged as well as, or instead of, the employer if the offence in question was due to their consent, connivance or neglect.

Monday 22 April 2013

Dealing with serious accidents



 
In the events industry the risk of a serious accident can never be discounted. 2013 will bring unprecedented changes in the way events are regulated by enforcement agencies so responsible boards should be scrutinising their arrangements to deal with the legal consequences of a crisis of this nature

. This update revisits the key essentials for preparing to handle such a situation.

An organisation’s response to a serious accident in the first few hours can often determine how well an organisation or those individuals implicated come out of it. What is done cannot be undone, but failing to manage the aftermath professionally can make the difference between a controlled crisis and an uncontrolled disaster.

Due to the nature of the events business, event managers on a day to day basis deal with compensation claims for relatively minor injuries and the mistake that is often made is to gear up to deal with a civil law suit. Civil claims, however large, are by definition, limited by insurance cover and will almost certainly come down to an agreed out of court settlement which could include a confidentiality clause to limit reputational damage. In the event of a serious accident the potential claimant is in no position to begin legal proceedings, so other than a timely call to the insurance company, that issue can be dealt with later. Crisis managers would be better to focus on the prospect of the potential for unlimited fines and, in very serious situations, prosecution of individuals accompanied by unfavourable exposure in the media and on social media platforms.

The authorities may respond quickly and will often, in a matter of only hours, decide whether or not to pursue criminal proceedings. In the event of a fatality (or sometimes a serious injury) the police will send a scene of crime officer to determine whether or not the death was an accident or a crime in the sense that it involved foul play. Having established that it is a genuine work related accident (though not the cause) this still leaves the option of a police prosecution for manslaughter against an individual or the corporation
1.

Recent updates have covered the HSE’s intention to involve itself directly in event construction and so they could be the lead enforcement agency as well as the local authority in whose jurisdiction the event falls. It must be remembered that the fire

authorities have enforcement powers and would be involved in an incident that was related to fire safety.

First Response



It goes without saying that the welfare of the injured party and those directly involved must be catered for. Harsh as it may seem however, someone has to take a step back and begin to assess and prepare for the legal and reputational consequences that may follow.

The powers of the authorities when it comes to accident investigation are broadly similar so I will cover them together. It is worth noting however that the involvement of the police in a manslaughter investigation is likely to be very intrusive and disruptive and could lead to arrests (a power that the ‘civilian’ agencies do not have).

The first order of business is for duty staff to recognise that this is a major incident that cannot be handled by the event team alone and requires a company level response which must include obtaining professional legal advice.

The investigation



It is vital that those involved carry out their own investigation as soon as it is practical to do so. Events are by their nature transient and key witnesses may be hard to trace later so obtaining their details must begin immediately. The first priority is to establish the facts of the accident.

Happily first aiders have little to do on a day to day basis but when they are confronted with a serious accident they are sometimes prone to speculation; thus a very painful leg twisted out of position becomes ‘a break’. Medical details need to be confirmed by medical professionals at the point of treatment not by first aiders who lack facilities such as X-Ray scanners. A ‘fall from 3m’ may actually have been 2m so someone needs to measure it to confirm. After a delay, data protection concerns may get in the way of establishing the facts so the company needs to act fast to obtain this data. Record the scene with video and stills, take measurements and make comprehensive notes or use a digital voice recorder.

The interview process



The authorities are likely to want to interview individuals and can do so either as ‘witnesses’ or ‘suspects’. The first task is to find out who they wish to interview and if possible in which category. Before a witness interview you are allowed to brief the individual about the likely format and reassure them that the questions they will be asked are just intended to help detail the events in question. You are not allowed to coach them in how to answer the questions. A colleague can sit with them if it makes

them less apprehensive. The interviewee is allowed to ask for a written copy of their statement at the end of the interview although it will be their property not the employer’s. During such an interview they cannot incriminate themselves but can incriminate others including the employer.

If during an interview the authorities form the view that the interviewee is now a suspect or they have decided that an individual is a suspect from the outset they will be cautioned. If anyone is interviewed under caution they will be formerly ‘cautioned’ to advise them of their rights
2. They are entitled to legal representation at the interview which should be separate to the legal representation for the employer because of the potential for conflict of interest. Be under no illusions. Health and safety law is criminal law and anyone interviewed under caution in these circumstances is a suspect in a criminal investigation with all that this portends. The interviewer will be trying to secure a conviction and will be well trained in the art of getting interviewees to reveal evidence that will incriminate them or others. It is vital that they have legal representation.

If it is the company itself that is the suspect then the authorities will ask to interview an individual, probably a senior manager to represent the organisation. They will be cautioned but in these circumstances it is the company that is the suspect rather than the individual.

It follows that major incident plans must include the ability to obtain relevant legal advice quickly.

Organisations often make the mistake of leaving the interviews to the authorities. It will be an important part of the response for an organisation to conduct its own interviews of staff and witnesses to assist with its investigation. An employer has no powers to compel employees and others to be interviewed however employees have a legal duty to cooperate with reasonable requests made by an employer on health and safety issues.

There is a detailed article on the techniques police may use to gain information in interviews under caution at www.healthandsafetyatwork.com/hsw/content/talking-out-turn.

The paper trail



The police and other enforcement authorities have powers to demand documents as evidence and this could be extended to computers and hard drives on which they are stored. When dealing with these requests;

 filter all requests for documentation to a single point of contact

 

 make sure that the agency has the power to take the documents requested and that documents/information requested is not protected by legal privilege (see below)

 provide only what is requested, do not simply hand over everything

 keep copies and make a record of all requests.

Legal Privilege



A organisation’s own lawyers will request to see documentation to assess the best way to defend against criminal proceedings. Communications between a lawyer and client are legally privileged and need not be disclosed. Organisations should anticipate which documents may fall into this category and make sure that they are protected before they are seized by the authorities.

This was the subject of an earlier update and a detailed explanation is still available on the X-Venture blog site.

Conflicts of interest



Event management is about teamwork and as event managers we are naturally disposed towards cooperation which is essential for good risk management. It must be recognised however, that in the instance of a serious accident with the potential for prosecution, the venue, organiser, exhibitors contractors and individual employees involved will have competing and conflicting interests not least a strong desire for the outcome of the investigation by the authorities to find that other parties were culpable. It stands to reason that a legal defence will be a lot stronger if all parties involved cooperate, however in the febrile atmosphere of a criminal investigation it is quite likely that this cooperation will break apart. If individuals are being interviewed under caution they will rightly prioritise their own defence over that of their employer or any other individual or company. Organisations must recognise this. There is no simple way of dealing with this however ownership of information, establishing the facts of the case and keeping up to date with the progress of the official investigation is a key element of managing the company’s defence.

How to prepare



It stands to reason that an organisation with a robust health and safety policy and event planning processes centred on risk assessment, which is diligently followed by competent event managers who have received health and safety training is less likely to find itself compromised. A health and safety file should be compiled for every event with key health and safety documentation which will be crucial to a legal defence.

Being on the receiving end of a criminal investigation is likely to be unnerving. In preparing to deal with it there is no substitute for scenario based training even to the point of conducting mock interviews under caution.

These circumstances are fortunately rare but in the events industry the risk of a serious accident can never be discounted. 2013 will bring unprecedented changes in the way events are regulated by enforcement agencies so responsible boards should be scrutinising their arrangements to deal with a crisis of this nature.

Notes

1. The UK Corporate Manslaughter and Corporate Homicide Act facilitates the prosecution of a company following a fatality. (the Corporate Homicide Act is the Scottish law)

A new offence will have been committed if the way in which the company’s activities are managed;

 causes a person’s death and

 amounts to a gross breach of negligence of a relevant duty owed by the organisation to the individual

It does not define what is meant by ‘management failure’ but can be broadly interpreted as systemic failures in the system where standards have fallen far below what can reasonably be expected of an organisation in the circumstances.

Gross Negligence Manslaughter is brought against individuals for a breach of duty which causes death

2. Caution wording in England and Wales is as follows
: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." It is not the same in Scotland where an adverse inference cannot be drawn from a suspects failure to answer a question as it can in England and Wales

Wednesday 9 January 2013

Corporate Manslaughter - the Lion Steel Case. Are there implications for event directors?


Many would argue that legal action against a company and its directors following a death at work was fully justified.  The case however does raise important concerns regarding the prosecution of individual company directors.

 

In 2008 a maintenance worker for Lion Steel fell from the roof to his death.  The company was charged with Corporate Manslaughter and offences under section 2 of the Health and Safety at Work Act (HASAWA).  Three company directors where charged with Gross Negligence Manslaughter and offences under section 37 of the Health and Safety at Work Act.  In July the company, which has a turnover of £10 million, pleaded guilty and was fined over £480,000 plus £84,000 in costs.  The directors who went to trial were acquitted in a plea bargain arrangement.  The CPS presented evidence of a lack of training, no risk assessment, no safe system of work and lack of supervision.  The facts which lie behind this case should be of concern to all directors and event company directors in particular for a number of reasons.

 

Firstly the Crown Prosecution Service (CPS) tried to establish a de facto ‘carte blanche’ duty of care for all directors to all employees by virtue of their office.  The judge ruled against it on this occasion, but it does not mean that the CPS will not do this again.  Previous attempts to establish a specific Director’s Duty in law have not come to pass but it could come into place by way of case law in a future case.  Part of the reason that it failed in this instance was that it was hard to establish a direct link between the actions of the directors charged, one of whom was the finance director, and the operative on the roof. 

 

The case against the directors did not fail.  They entered a plea bargain arrangement whereby they allowed a guilty plea of corporate manslaughter against the company, in return for the charges against individual directors to be dropped.  It is not hard to see why.  The Directors were facing a range of punishments including, custodial sentences of 2 years to life imprisonment, fines and disqualification from holding a directorship for up to 15 years.  Their trials and the threat of a heavy custodial sentence could have been drawn out over four years possibly resulting in professional and financial ruin even if they were found not guilty.

 

It raises the disturbing question as to whether the CPS deliberately brought these charges against the individuals in order to leverage a corporate plea.  If this is the case we could see more cases of directors automatically potentially facing life imprisonment following a death at work.  And what of these directors’ fiduciary duties to the company and its shareholders?  Surely there was a conflict of interest in sacrificing the company to defend their own cases.

 

Lastly the CPS did not rely on witnesses.  Instead it used documentation and e-mails dating back to 2002 to support its case.  This underscores the need for careful attention to archiving of key documents to prove that directors are routinely discharging their duty of care, from issuing and implementing a proper health and safety policy to ensuring that there are safety files for each event.

 

The law of corporate manslaughter was brought in to target companies and not individuals and yet it appears to be having the perverse effect of encouraging the targeting of individual directors in order to secure a conviction against the company.

 

Lion Steel was not a corporate behemoth, its pre-taxed profits ranged from £187,000 to £317,000 and its highest paid directors received £88,000 per year.  It now faces a struggle to survive commercially with such a hefty fine which they must pay within three years.

 

So what lessons can we derive in the events industry?  Firstly the events business has had its fair share of fatalities; work at height and event construction activity place us at the higher end of the risk scale as an industry.  It is for this reason that the HSE have decided to enforce safety at the construction of events (see previous updates).  The safety industry commentary was critical of the CPS in targeting individuals in this way1.  In the events industry it would be a lot easier to establish a link between the actions of individual directors and the activities on the event floor particularly with the portfolio structure of most organising companies where senior directors are clearly responsible for specific events.  Any director who is part of the structure of a venue management team would also have clear links with operational activities which would be easy to establish in court.

 

Responsible organisers and venues already proactively manage risk.  This case should prompt a shakedown of policy and procedures in those companies that do not have robust risk management processes.  All companies should look carefully at their major incident handling plans in terms of processes in place to defend the companies and its directors against charges of corporate or individual gross negligence manslaughter respectively.

 

 

Note.  1.  Safety and Health Practitioner August and September Issue, Health and Safety at Work October issue.

Wednesday 2 January 2013

HSE enforcement at events and the application of Construction Design Management Regulations (CDM) to the events industry.


The HSE has taken over responsibility for enforcement of event construction and is now arming itself with a new set of regulations to do so.  That can only mean more regulation.  In this update the wider events and exhibitions industry is challenged to find its voice in the consultative process in response.

 

This is the single biggest regulatory change to affect the events industry in health and safety terms in recent years and needs to be taken seriously.  The essential issue is that the HSE, having taken responsibility for enforcement of event construction, are now seeking to amend the CDM Regulations and apply them to events and exhibitions by 2014.   The consultation phase is underway.   E-mails are now flying around with a mixture of concern and comment (some of it ill-informed).   This was flagged up in earlier X-venture updates (see blog site) but my earlier comment has now been overtaken by developments.

 

Industry opinion on this ranges from being happy to let the AEV et al negotiate a deal with the HSE, to grave concern about what all this portends in the long run, particularly with regards to potential costs on the industry.  Some are concerned that that challenging the HSE will provoke a negative outcome.

 

I have been fairly vocal in my concerns and notwithstanding soothing noises from the HSE have not seen anything recently that gives me any comfort.   My essential concern is that we are about to get ourselves saddled with prescriptive, costly and unnecessary regulations which will be enforced by the HSE who have little or no knowledge or understanding of our business.   Their initial research was very narrow and superficial.  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’1. 

 

A lot of confusion has been created because these regulations are in theory being pared back to make them less prescriptive which will benefit the construction industry.   The proposal, however, is to widen the scope to include the events industry which is not good for us because if the intention is not to impose more regulation on us then why do it at all?   Whatever has been said, the CDM Regulations have never, since they were first introduced in 1994, been applied to event construction, so applying them now is not ‘just a simple tidying up of the rules’ as it has been portrayed.

 

One of the arguments in favour of revision is that the introduction of the 1994 regulations had the unintended consequence of spawning a whole new industry of professionals required to interpret and apply these regulations for the construction industry.  Are we not therefore at risk of the same costly unintended consequences when these regulations are applied to an industry for which they were never originally intended? 

 

There has also been a lot of confusion between regulation of temporary and demountable structures (TDS) and event construction generally.   Responsible organisers and venues ensure that complex structures are properly checked.   CDM however has never been just about structural safety per se but the whole construction activity including all working at height, vehicle movement, site access, PPE etc.   So there are two things going on here.   The HSE is interested in enforcement of TDS guidance and they also want to apply revised CDM regulations to event construction in general.   To illustrate how intrusive that could be, we are potentially talking about every event construction project having to be registered with the HSE in advance.   The term ‘construction’ at present means any build up or break down activity which would also include conferences.  The HSE, when pressed further on this have said that ‘construction’ is legally defined in the regulations.   The definition currently specifically excludes erection of ‘exhibition panels’ – so presumably shell scheme , however in my view the definition is not sufficiently clear as to whether this applies to exhibitions and conferences generally and could be taken either way.   My point is that since the regulations are being reviewed, presumably the definition can also be redefined to specifically exclude exhibitions and conferences. 

 

The potential issue here is one which risk managers call theoretical legal jeopardy.  Regulations are brought in to target a specific problem such as use of temporary stage sets but are widely applicable to smaller events.  So for example conferences and small exhibitions are not targeted but find themselves caught up in the regulations.  Venues with no desire to tangle with the HSE ramp up tenancy requirements to counter a theoretical legal risk and before long we have conferences required to employ a NEBOSH qualified floor manager.  None of this would have been intended but is analogous to what happened to the construction industry and took 19 years to review.

 

In the UK risk control is based on what is reasonably practical relative to cost.  Thus far the argument has been based on micro issues in terms of the detail of CDM.  We need to step back and take a look at the macro issues.  In my view exhibition organisers and venues in particular should think about the wider economic impact – ultimately it will be exhibitors who will pay for this as they usually do.   The HSE has taken over responsibility for enforcement of event construction and is now arming itself with a new set of regulations to do so.  That can only mean more regulation and by extension more cost.  There are a number of well-designed, state of the art and well-run venues around the world that would be only too happy to offer a more business friendly approach to events than the UK. 

 

The solution is simple.  ‘Construction’ as it applies to temporary structures should be defined so as to focus on the intended targets in the entertainment business such as large stage sets.  For example the trigger for CDM could be structures designed to be up for more than four days, over 6m high and over 50 m2 thus all other structures would revert to the status quo.

 

We need some loud and powerful voices to make the argument for not damaging a successful and profitable industry with unnecessary regulation.

 

Notes

 

1.    HSE report, ‘Identification of safety good practice in the event construction and deconstruction of temporary and demountable structures’