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.

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