X-Venture Legal Update June 15

CDM 2015

 

Whilst we awaited final publication of the HSE’s guidance to CDM¹ many event organisers have quietly got on with applying the regulations as far as it is practical to do so.  They are right to do so for what is perhaps least well understood or appreciated is the simple principle that the ‘Client’, which in events is the organiser, under CDM is the owner of the project and the liability that goes with it.  Venues in the UK have traditionally taken a proactive role in managing health and safety on the very simple premise that they and not the organisers are a more obvious target for enforcement action by the authorities.  CDM in the long term will shift the balance of risk ownership in a legal context onto the organiser.  Whilst operations teams will continue to manage risk on a day to day basis organisers also recognise that there is a clear implication that the most senior managers within the organisation represent the CDM Client function and therefore have greater personal accountability for compliance.  This merely aligns health and safety with the natural grain of risk management in its widest sense.  Arguably, in financial terms at least, the business risks of running an event are far greater than day to day health and safety concerns.  Perhaps now CDM will mean that health and safety will take its proper place as a line management function rather than an esoteric activity for a few specialists.

 

ISO 45001

 

ISO 45001 is due to replace BS OHSAS 18001 with a planned publication date of October 2016.  Companies reviewing their professional accreditations should follow the progress of this new health and safety standard.  X-Venture will advise clients on any policy amendments necessary to reflect best practice and IOSH courses will reflect the new standard when it is published.

 

Increase in Penalties for Health and Safety Offences

 

New tougher sentencing guidelines have been proposed which will mean significantly higher penalties possibly quadrupling previous sanctions.  The new proposal takes into account the seriousness of the offence and the company’s ability to pay.  For larger companies fines for a fatality could run into the tens of millions of pounds with fines exceeding a million pounds even for some non-fatal accidents.  The guidelines also increase fines and lower thresholds for custodial sentences for individuals.  The definitive guide is expected in September.

 

New legistlation² has also abolished the cap on fines (previously £20k) for health and safety offences dealt with by a Magistrates’ Court.

 

Very serious accidents are fortunately rare in the event and exhibitions industry but managing boards and key stakeholders need to weigh up the significance of these uninsurable liabilities against expenditure on safety risk management at corporate level.

 

Exemption of Self Employed from Health and Safety at Work Act

 

The Deregulation Act 2015, which will exempt some self-employed workers from duties under the Health and Safety at Work Act, has become law.  Not all those working in the events industry will be exempt however, as it is probable that guidance to the regulations will contain a list of activities not covered by the Act which will include event construction.  In any case organisers and venues now have tighter duties under CDM regulations to manage and monitor the activities of contractors on site self-employed or otherwise.  This bill has been controversial as critics fear that it will encourage unsafe working by the self-employed.  There are large numbers of self-employed service providers in the events business and it needs to be made clear by all parties that as far as event construction activities are concerned the rules have not been relaxed.  This Bill may still be amended and will be covered in future updates.

 

Jail Term and Fines for Hoteliers’ Failure to Comply with Fire Regulations

 

A London hotelier has been handed a £200k fine and a four month jail term (suspended) for breaching  fire safety law³, including failing to conduct a fire risk assessment.  In a subsequent case the owner of a hotel in Hull was sentenced to nine months’ in jail (suspended) and fined £50k for similar failings.  Both cases arose from a routine inspection rather than a fire incident and highlight the increasing propensity for the authorities to take action against high footfall venues where visitors are put at risk.

 

It should also be noted that a fire risk assessment is required for all business premises including offices even if the employer is a tenant within a multi-tenanted building.

 

Contract Cleaner Fined for Accident with Ride-On Cleaning Machine

 

A major contractor which services event venues has been prosecuted following an accident in the public area of an airport.  Although the incident did not cause injury, the company was prosecuted and fined £30k plus £5.4k costs under the Health and Safety at Work Act and other legislation for failing to maintain the machine’s brakes.  Its maintenance contractor was also prosecuted and fined.  Such machines are a feature of events and exhibitions and could pose a serious hazard if they are not properly maintained. 

 

Mobile Access Towers

 

Not on your life! is an on going PASMA campaign backed by the HSE to promote safe use of mobile access towers in compliance with European tower standard EN 1004 and the draft British Standard, PAS 250 which can be obtained from PASMA at www.pasma.co.uk.  It should be noted that one of the areas singled out by the HSE for scrutiny under CDM at events is work at height.

 

New Guidance for Display Lasers

 

New PLASA Guidance for Display Lasers is now entering the public consultation phase.  Display lasers (typically class 3) have the potential to cause skin burns, eye damage and can pose a fire risk so this is an import revision to guidance for the events industry.  The new guidance will be available from the PLASA website www.plasa.org.

 

Pyrotechnics for Indoor Venues

 

The Association of British Theatre Technicians (ABTT) is revising and reissuing the code of practice for pyrotechnics.  The new guide should be available in June from ABTT.  Whist the ABTT guide itself only applies to fixed seat auditoria, this new guidance is expected to be accepted as best practice by other event industry bodies such as the eGuide.

 

New Guidance on Skin Cancer from Exposure to the Sun

 

Many event companies with overseas operations require employees to travel to hot countries.  In such circumstances the risk of skin cancer from exposure to the sun is as much a work place hazard as working at heights and in the UK work related skin cancer kills one person per week.  IOSH’s ‘No Time to Lose’ campaign offers free advice for employers to issue their staff which can be obtained from www.notimetolose.org.uk.

 

‘Heroism Act’ Comes into Force

 

The Social Action, Responsibility and Heroism Act (SARAH) has now become law.  The idea is that those providing assistance in good faith, such as first aiders, do not find themselves open to legal action brought against them by the victim.  In future courts will be required to consider whether the individual was ‘acting for the benefit of society’, ‘demonstrated a predominantly responsible approach’ or ‘were acting heroically by intervening in an emergency to assist and individual in danger’.  Where this is the case they will be protected from legal action against them.  This has clear implications for first aid and security providers but also applies to anyone taking action in response to an emergency or major incident.

 

Is it Legal to Smoke e-cigarettes at Work?

 

Technically yes, since the Health Act 2006 only bans the smoking of tobacco.  This issue has long vexed theatres and similar venues when smoking is required as part of the performance but a recent case⁴ has highlighted compliance requirements in the office when an employee took her employer to a tribunal.  The tribunal ruled that since the employer did not specially ban e-cigarettes the decision to take disciplinary action against her was unfair.  HR managers may wish to review the relevant policy in this regard.

 

Notes

 

1.     HSE has now published  legal guidance (L153) (http://www.hse.gov.uk/pubns/books/l153.htm)

2.     Legal Aid, Sentencing and Punishment of Offenders Act

3.     Regulatory Reform (Fire Safety) Order

4.     Insley v Accent Catering

A Short Guide to CDM Regulations for Event Operations Managers May 2015

1      The Legal Position

 

Construction (Design and Management) Regulations 2015 (CDM) came into force on 6^th April 2015 and apply to all ‘construction’ which now includes all event build up and break down activities including shell scheme erection.  It only applies in the UK. 

 

It should be noted that at the time of publishing this document the HSE had only published event industry guidance in draft and aeo organisers have yet to formalise a common industry approach.  This should therefore be regarded as interim guidance subject to review as common practices develop.

 

CDM is an important piece of criminal law and so it needs to be taken seriously, however the HSE have been clear that they will not prosecute or take enforcement action against event companies which are compliant with the Health and Safety at Work Act (HASAWA) and other relevant legislation and are manifestly discharging their existing duties of care.  The vulnerability for organisers here is where contractors and exhibitors working on site are not compliant with HASAWA and related law.

2      Roles and Responsibilities

 

The HSE guidance to CDM is L153 which can be obtained from the HSE website.  The HSE has in addition published guidance with organograms for the events industry which show how the various duties apply.  At the time of writing these documents were still in draft.  For most practical purposes at exhibition and conferences the organiser assumes the key roles which are as follows:

 

·         The ‘Client’ – the party on whose behalf the event is being run although this could be an external body like a trade body who commissions a professional organiser to run the event.  Essentially it is the owner of the event.  These duties will normally rest with the head of the event portfolio such as the MD or portfolio MD.

·         ‘The ‘Principal Designer’ (PD) – is the party responsible for the overall concept.  Essentially this is the event director/manager or equivalent.

·         The ‘Principal Contractor’ (PC) - is the party responsible for delivering the construction phase and this is the operations team.

 

For small events it could be that one person takes on more than one role or even all of them.

 

It is fundamental to CDM that the Client takes overall responsibility for health and safety.  It indicates that senior management will have to take a more proactive role in health and safety to ensure that they can have complete faith in the PC (operations team) to deliver on health and safety and that they have the necessary resources to do so.  Venues within tenanted areas under CDM become a ‘Contractor’ supplying services to the Client so CDM may also mean that the operations team receives less proactive support from the venues on health and safety issues. 

 

It will have to be determined on an event by event basis the extent to which either venues or organisers have the primary duties under CDM for external roads and common areas which may be shared with other users not related to the event.

 

Exhibitors with large or complex stands are seen as essentially having their own mini CDM site within the context of the whole site with their own Client, PD and PC.  For practical purposes, unless there is specific guidance on this, most organisers should continue to manage and check stands as they currently do.

3      Application of CDM During Build Up and Break Down

3.1   HSE’s Key Principles

 

The draft HSE’s guidance states that the key principles to managing construction safety are as follows:

 

·         eliminate or control risks so far as is reasonably practicable

·         ensure work is effectively planned

·         appointing the right people and organisations at the right time

·         making sure that everyone has the right information, instruction, training and supervision to carry out their work safely and without risks to health

·         have systems in place to help parties cooperate and communicate with each other and coordinate their work

·         consult workers with a view to securing effective heath safety and welfare measures

·         any actions required should always be sensible and proportionate to the risk.

 

None of the above is in addition to exiting duties under HASAWA.  The HSE have emphasised that they will take a proportionate approach to enforcement and will not seek compliance for its own sake where the key principles have been applied.

3.2   Notification to HSE

A project is notifiable if the construction work on a construction site is scheduled to:

 

(a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or

(b) exceed 500 person days

 

There will be a form for notifying the HSE published in the guidance.

 

The vast majority of events will probably not be notifiable.  Even so the HSE has stated that notification is not an issue.  It will be left to the Client to decide whether or not an event is notifiable and whether or not to combine the build and break down to trigger the threshold or to treat each separately.  The HSE will not take action for failure to notify.  In the short term unless the event is quite obviously notifiable it is reasonable to wait for the events industry to develop a position on this.

3.3   Construction Phase & Construction Phase Safety Plan

 

The construction phase need not necessarily overlap exactly the build up and break down phase where CDM site conditions apply.  The most obvious example is where on the final day of build, construction type controls such as the wearing of Personal Protective Equipment (PPE) can be relaxed as construction activities make way for non-construction work such as cleaning and stand dressing.  Operations teams should think about formalising this into the Construction Phase Safety Plan (CSP).

 

The CSP is a specific legal requirement under CDM and operations teams should prepare a CSP.  A suggested outline format is as follows:

 

Name of Event and Venue
Principal Contractor details	This would normally the legal entity which is the organiser – not individuals
Client Details	This would normally be the legal entity which is the organiser – not individuals or the ultimate client if the event is not owned by the organiser
Principal Designer Details	This would normally be the legal entity which is the organiser – not individuals
Description of Work/Event	Brief overview
Key dates (start/finish/other)	Build, Breakdown and indication if the construction phases are different e.g. the construction phase ending on the last day of build.
Key roles in the Event/Operations team	A organogram should suffice
How the work will be managed safely	Include details of the site rules, arrangements for daily briefing/update/coordination meetings, site inductions, welfare facilities, fire and emergency procedures and, arrangements for the control of specific risk (such as falls from height, collapse of structures, crane operations, heavy lifting etc)

 

The CSP is not the Event Safety File per se but would be included within it (see below).

3.4   Health and Safety File

 

This is a specific legal requirement.  The health and safety file as defined by L153 is ‘a file appropriate to the characteristics of the project, containing relevant health and safety information to be taken into account during any subsequent project’.  Unless further guidance or direction is given this may be deemed to be the Event Safety File which is normal event best practice and would now include the CSP as above.

3.5   Site Access Control and Site Induction

 

The aim of CDM is to ensure that only persons who are deemed to be competent (i.e having the necessary skills, knowledge and experience) with regard to working on a construction site are permitted to gain access during the construction phase.

 

Operations teams need to ensure that all potential occupants during the construction phase (i.e. not necessarily during late build and opening morning if construction activity ends prior to the end of build up) have received the site safety rules and that site access during the construction phase is restricted to the following:

 

·         Organiser’s staff

·         Venue staff assigned to the event

·         Accredited contractors’ staff (note this includes venue contractors)

·         Exhibitors and Exhibitors’ Contractors.

3.6   Key Risks and Site Rules

 

At present the eGuide should be regarded as the template for general site rules at exhibitions and similar events.  Over time it is likely that the guide will be amended by the AEV to reflect new best practice compliant with CDM.  There are three areas which the HSE has identified as warranting special attention which are:

 

·         Work at heights and in particular working on live edges

·         Control of moving vehicles and in particular the separation of pedestrians from close proximity with moving vehicles

·         Wearing of PPE

 

These areas should be targeted for improvement until specific industry guidance is produced.  It should be anticipated that the wearing of high visibility vests and safety shoes during the construction phase is likely to become a standard industry requirement.

We are now only a few weeks away from CDM coming into force and when it does it will also now apply to the events industry. It application raises important questions.

 

Are the HSE using CDM as a Trojan horse to reinforce a regulatory hold over the events industry?  Whereas their actions to date have at times suggested this, I do not believe on balance this is the case.  Notwithstanding, whilst this reflects current intentions we cannot predict how this will influence the actions of individual inspectors at events many years from now. 

 

How do you reconcile the HSE’s stated intention for a proportionate approach with the fact that CDM is none the less criminal law requiring compliance by even the smallest event?  At a recent meeting I asked the HSE whether a couple planning an extravagant wedding with a live band on stage had Client duties under CDM.  It was not a flippant question as a heavy handed approach will drive away this business.  The answer is that under CDM as it stands they do.  The HSE maintain that they will take a proportionate approach but they have also been clear that they will not exempt any event or event related activity, however small.  In my view the draft guidance misses the opportunity to clarify what is meant by proportionality so it is left to the duty holder to figure out to what extent this law applies to their event.

 

How is it possible to draft and agree guidance which is fit for purpose before the 6^th April with only a few weeks to go?  The HSE acknowledge that it is very unlikely that guidance will be published before CDM comes into force on 6^th April 2015.  Whilst they have undertaken to consult widely, the events industry will have to live with (and pay for) the consequences of this guidance for the foreseeable future so it will be important to get it right.

 

Will it cost more?

 

Much of the debate has been around role mapping and administrative issues that in themselves would not significantly increase costs.  There are possibly areas where HSE scrutiny in a CDM context would challenge current practices thus requiring a change in approach and increased costs or risk of prosecution. 

 

It is possible that an increased regulatory burden will be self-inflicted.  Post 6^th April there will be no shortage of persuasive health and safety consultants willing to sell CDM solutions to the uninformed.  We do not want a wedding couple having to discuss the CDM plan alongside menu options!  Venues may also be tempted to create a CDM buffer by tightening the rules unnecessarily.  Whilst this is only likely to significantly affect smaller events these things have a habit of taking root. 

 

Ultimately I have never encountered a situation of new regulations costing less so it would be sensible to budget for increased costs.

 

What are the non-issues?

 

Notification and technical compliance.  The HSE say that they will leave it to the Client to determine whether or not an event is notifiable.  They were clear that they would not pursue an employer merely for failure to notify (or any similar technical breaches of CDM) if the substance of the health and safety arrangements were satisfactory.

 

Transition.  There is no transition period so CDM applies from 6^th April.  The HSE acknowledge that it will take some time for the events industry to be able to demonstrate compliance.  Having gone to such lengths to persuade the events industry of their benign intentions they are unlikely to mount a regulatory raid on the industry before we could be reasonably expected to prepare ourselves.

 

Will individual managers be more liable for prosecution under CDM?

 

Managers at all levels may have increased duties to perform on behalf of their employer but would be no more personally liable in criminal law than they would be for any other health and safety regulation.  Those at event director level and above however should review their responsibilities and should be cognisant of the provisions of Section 37 of HASAWA for failings as a director which could have contributed to significant breaches of relevant health and safety law.

 

Conclusions

 

The HSE’s assurances of proportionality cannot be guaranteed and it must always be remembered that CDM is criminal law and places very specific duties on specific organisations which, in the context of events, will be on easily identifiable individuals.  It may not, in the end, significantly increase the regulatory burden but it will shift the emphasis on whom corporately or individually (as an employee) that burden falls.

X-Venture Legal Update January 2015

 

 

CDM and regulatory reform

 

Subject to Parliamentary approval, new Construction (Design and Management) Regulations 2015 (CDM) will come into force on 6^th April 2015.  HSE has published draft legal guidance (L153)¹ (http://www.hse.gov.uk/pubns/books/l153.htm) before the Regulations come into to help anyone who has duties under the Regulations to prepare in advance.  There will be no transitional period allowed for the events industry although the HSE has said that it will only proactively target events involving higher risk erection and dismantling of temporary and demountable structures.  The HSE has identified four strands for what it calls the entertainment sector which are TV and Film, Outdoor, Theatres, and Venues.  They have acknowledged that exhibitions will need separate consideration and the industry has been invited to send a representative to JACE².  It is not clear whether exhibitions will constitute a separate strand.  The HSE intends to publish guidance for each strand and have stated that they will do so by April 6^th.  It is not clear whether exhibitions will have its own guidance or still fall within the Venues strand. 

 

The key issue is that with 10 weeks to go before implementation and with no published guidance we are left with no clear idea of the full impact of these regulations legally, operationally and financially.

 

X-Venture has published a more detailed analysis of L153 to accompany this brief although those with direct interests in the outcome of the implementation of CDM are advised to read widely on the subject and canvass other views until the HSE can provide us with more certainty.

 

Those found innocent may still incur defence costs

 

Many will recall the tragic event in 2011 when drifting smoke from a rugby club firework display caused a multiple pile up on the M5 and 7 fatalities.  The organiser was originally charged with 7 counts of gross negligence manslaughter and later acquitted of health and safety offences³ on the grounds of foreseeability (see below).  Until recently defendants found innocent and not in receipt of legal aid could recover most of their costs but this changed in 2012 with the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Although the judge has some discretion if there is thought to be improper conduct by the prosecution this was not the case and so the defendant was liable for the full costs of his defence.  Winning a case could turn out to be a pyrrhic victory underlying the value of preventative strategies.

 

 

 

Reasonably foreseeable risk

 

A number of recent cases have contributed to the definition as to what might be deemed as reasonably foreseeable.  This is particularly pertinent in the event world where we often have to assess risks which are difficult to foresee and quantify given that the very nature of an event is that its context in terms of location, content and visitor profile will always be unique.  In the above case of the M5 crash Geoffrey Counsell’s defence hinged on whether the accident was foreseeable.  The judge held that even if it could be established that smoke had contributed to the poor visibility caused by the fog already present on the motorway, this could not have been reasonably foreseen and therefore was not material.

 

In the case of Mr Counsell it might be reasonably assumed, given that the accident was judged to be not reasonably foreseeable, that he acted with reasonable care.  But what if employees behave foolishly?   A Recent case which went to appleal⁴ sets a new precedent.  The employee whilst attempting to clear a jammed conveyor ignored the established controls causing his arm to be dragged in resulting in a fracture.  The engineer admitted that he had taken a foolish risk.  Despite this and the fact that the company had proper controls, risk assessment and a permit to work system in place they lost the case and incurred fines and costs totalling £41,500.  The company did not foresee that the employee would behave foolishly in the risk assessment and it is a reminder to duty holders to factor this in when conducting risk assessments.

 

Fee-for-intervention (FFI)

 

The HSE’s much maligned FFI scheme, which has been a regular feature of these updates, is still attracting comment.  The HSE commissioned an independent review which has found that FFI has been applied fairly and properly although this has not stopped the criticism by many commentators who point out that HSE inspections have risen by 6%.  Recently HSE chair Judith Hackitt issued an unequivocal statement that the FFI scheme would remain unchanged.  My view is that it encourages to the HSE to enforce the letter of the law for a material breach.  It remains to be seen how this device to charge for their services comes into play when event construction becomes subject to CDM regulations.

 

A recent ruling by HMRC has determined that since charges imposed on offenders are technically a charge for the HSE’s services they are deductible against corporate tax which may be a small compensation for those who end up paying out.

 

Forklift and telehandler fatalites

 

A wholesaler has been fined £175,000 plus £18,450 costs after an assistant at one of its branches was hit and killed by a forklift.  The case hinged around the company’s failure to adequately protect pedestrians from forklifts with designated routes.

 

In a separate case Costain paid out £615,000 in fines and costs following the death of a telehandler driver when it overturned on him.  The HSE found that the safety of the vehicle was compromised by the limited space and other obstructions where he was required to work. 

 

Whilst neither case is related to the events industry the circumstances are easily comparable to event construction work.  Vehicle movement and in particular the safety of pedestrians will be an HSE focus under CDM and those that have actually delved into L153 will have spotted that regulations 27 and 28 specifically address these issues.

 

 

Notes

 

1.    L series guidance provides advice to help dutyholders comply with the law but does not have the same legal status as an approved code of practice (ACoP) and includes a clause by clause examination of the regulations.

2.    Joint Advisory Committee on Entertainment

3.    R v Counsell

4.    Polyflor v HSE

CDM 2015 Comment

Subject to Parliamentary approval, new Construction (Design and Management) Regulations 2015 (CDM) will come into force on 6 April 2015.  HSE has published draft legal guidance (L153) before the Regulations come into to help anyone who has duties under the Regulations to prepare in advance.  The HSE have also issued a letter to the entertainments (and events) industry through the HSE chair of JACE, Cameron Adam, which can be found via this link: update letter .  I will produce a more detailed review of L153 shortly which will be published on this blog. 

 

CDM places new onerous criminal law duties on very specific and clearly identifiable companies and individuals.  The HSE’s assurances that nothing much has changed glosses over the fact that the legal status and the relationship between various parties in the industry will alter.  In most cases an event director or other senior director will take on the Client duties and will be much more liable for the actions of others further down the procurement chain.  It is also unclear as to how an event organiser, particularly in exhibitions, is supposed to exercise Client duties over 3^rd party contractors who are not part of the procurement chain many of whom will be foreign contractors (and for practical purposes beyond the reach of the HSE) with no prior knowledge of CDM requirements.

 

The HSE are saying that they will only target proactively a few high risk events but they do not stipulate what they mean by that.  We are also reliant on the HSE’s interpretation of what a ‘sensible and proportionate approach to both regulation and compliance’ looks like and it is their interpretation that will count.  To all intents and purposes, therefore the events and entertainments industry is currently in regulatory limbo. The HSE’s assurances regarding proportionality are at best equivocal leaving event organisers with the dilemma of having to decide whether to direct resources towards compliance or simply ignore CDM and proceed at risk. 

 

Given this situation and from a wider perspective, how are health and safety professionals and operations staff supposed to articulate a business case for preparation for compliance when the HSE appear to be implying that it is ok for large swathes of the industry to ignore this law?

 

Key event stakeholders and the HSE do agree that key to this will be event specific guidance which the HSE is planning to publish on April 6^th in tandem with the implementation of the regulations.  The HSE has rejected the notion of a transitory period for the events industry (which has been afforded to the construction industry).  With less than 10 weeks to go the danger is the process will be rushed and the final product consequently flawed.  The business impact assessment has been paused while the guidance is drafted and will only be completed after the law comes into force so its findings will presumably be nugatory.  The irony is that CDM 2015 is an extension of the Government’s better regulation initiative.

 

In the interests of positive engagement, my colleagues in the industry have urged caution in taking the HSE to task on this.  However since our legitimate concerns were rejected without consideration during the consultation process the HSE is in no position to complain if industry commentators seek to generate a more public discourse through IOSH and similar institutions.

 

Any event professional would acknowledge the health and safety challenges in the events industry and the need to drive improvements, the frustration is that no one, least of all the HSE, has produced a cogent argument to support the notion that CDM 2015 is the solution to those challenges. 

CDM 2015 comes into force in April 2015; where does the events and entertainments industry stand?

CDM 2015 comes into force in April 2015; where does the events and entertainments industry stand?

 

If we do not proactively engage at every stage but especially in the drafting of new guidance we could be saddled with costly and restrictive legislation which is entirely unsuitable for our businesses.

 The HSE’s Position

 

The HSE’s current official position was provided in a written statement to the Joint Advisory Committee in Entertainment (JACE) which is the body that the HSE recognises as representing the entertainments sector.  The HSE has 5 strands for the entertainment sector (which includes B2B exhibitions and conferences) which are TV and Film, Outdoor, Theatres, Voluntary and Charities (including churches) and Venues.  Exhibitions and conferences fall into the latter alongside indoor music and entertainment events.   The main thrust of the HSE’s statement was as follows:

•  HSE has had a policy of not actively enforcing the current CDM Regulations in the entertainment industry, but has been advised that a blanket policy of not enforcing regulations in a particular sector is unlawful therefore it will be applied.
• The HSE recognises that risk systems differ in entertainment as opposed to conventional construction work.
• CDM will be applied on a risk based ‘proportionate’ basis.
• Companies that already have risk based management systems will need to do little more than they already do.
• Development of this regulatory approach and practical guidance for duty-holders is not time bound by the implementation date of the CDM 2015 Regulations.

Events and entertainment industry’s position

 The exhibitions and conference view point expressed at the aeo¹ meeting was that objections to CDM notwithstanding, it was a reality that was just going to have to be dealt with and the focus should be on preparing for compliance.  At the SAGE² meeting it was clear that other sectors, notably TV and Theatre, are still heavily engaged in attempting to block this legislation at DCMS³ level with arguments centred around economic impact.  The PSA⁴ is collating some very persuasive arguments to counter its application.  The minutes of the last JACE meeting show that the HSE have agreed to a specific TV and film subcommittee on CDM. 

How will CDM be applied?

 When it comes to application, the devil will be in the detail and it is clear that the process is currently skewed with the HSE still viewing the industry through the prism of entertainment.  Application may also highlight flaws in the HSE’s arbitrary strand allocations.  The ‘Venues’ guidance will have to manage/rationalise the differing needs of the eGuide⁵ community of exhibitions and conferences, alongside the A-Guide⁶ community of music and entertainment in arenas.  Can one guidance document cover a One Direction concert at the ACCL and a defence exports (military hardware) exhibition in ExCel?  There is a good reason why the eGuide and then the A-Guide were written as separate health and safety guidance documents to cover those types of events respectively.  All parts of the events and entertainments industry are going to have to ensure that they are sufficiently engaged to be able to influence the drafting of guidance to suit their own sector.

 If not in April 15 then when will it apply? 

The net result of industry efforts is that the HSE has paused the review of the economic impact statements until they can be reviewed in the light of the final draft of the regulations, the ‘mini ACOP’⁷ and the guidance which will be written for the 5 sector specific strands.   They have offered no view on this but having been heavily involved personally in bringing two industry guidance documents into being, at the very least I can see this taking 24 months and we have not even started yet.  The danger is that it will be rushed and poorly consulted.  The HSE chose to formally reject and ignore the event and entertainment industry responses to the consultation process which does not auger well for the consultation on the drafting of guidance.

Legally where do event companies stand on 1 April 2015?

This is criminal law which comes into force, as far as we know, from April 2015.  The HSE’s line appears to be – do not worry we are not going to enforce it in the entertainments industry yet.  The HSE’s statement was issued to JACE as an unheaded and unsigned pdf document and we should at least demand something more credible as the basis on which to ignore new criminal law.

The HSE has sought to allay industry fears by espousing the concept of proportionality by which we may infer that they will not be turning up at the set-up of a WI jam and bake sale demanding to see a CDM file.  The term, however, is subjective and it will be the HSE’s interpretation which counts so we need a lot more clarity on the HSE’s precise meaning of proportionality when it comes to large complex events.

 

From a practical point of view, the HSE has 140 construction inspectors only 30 of whom have been trained for ‘entertainment’.  In my view the chance that CDM will be proactively enforced is virtually nil in the current circumstances.  The problem comes when the HSE follows up an accident which is why I think we should seek a signed off legal position rather than subjective assurances in an unheaded pdf hand out. 

 So what do we do now?

Doing nothing is not an option.  This is criminal law which places onerous responsibilities on designated duty holders who could be named individuals.  If we do not proactively engage at every stage, but especially in the drafting of new guidance, we could be saddled with costly and restrictive legislation which is entirely unsuitable for our businesses.  There are some useful work strands which could be pursued as follows:

 

• The HSE should be pressed for an official statement with a lot more clarity on the legal position regarding the application of CDM to the events and entertainments industry post 1 April 2015.
• The HSE should be pressed for clarity regarding how all elements of the events and entertainments industry (not just TV and film) will be properly represented when it comes to drafting guidance.
• CDM creates differing and potentially divergent issues for venues and event organisers/promoters.  We should look at how that will play out in practical terms under CDM.  Will venues become the day to day enforcers? 
• Unique to the exhibitions industry is the issue of whether an exhibition will be one big CDM site or lots of little ones.  The exhibitions industry needs to develop a decided position on which is more suitable and influence the drafting of guidance accordingly. 
• The economic impact work has been paused and we should use the time to build a compelling case to ensure that the HSE is held to account with regard to the assertion that those that already have risk based systems ‘will need to do little more to comply with the CDM 2015’.

In conclusion

This is an important revision to a major piece of health and safety legislation which is due to be applied from April 2015 on a multibillion pound industry with significant international interests in terms of overseas visitors to events and venues for business, entertainment and tourism.  The HSE ignored the significant (28%) number of respondents from the events industry to the consultation process, dismissing the numerous and well-articulated arguments on the challenges we face as an irrelevant campaign.  As we stand we have no recognisably official communication from the HSE on when this law will be applied or how.  The economic impact statements have yet to be completed and we have not even started drafting the guidance.  The HSE is a publically funded government body whose role is to advise as well as enforce.  This does not inspire confidence and those with business interests in events and entertainment have every reason to demand more clarity from the HSE.

 Notes

1.     Association of Event Organisers

2.     Safety Advisory Group in Entertainment -  a network of safety professionals in the events and entertainments industry

3.     Department of Culture Media and Sport

4.     Production Services Association - represents companies and individuals that provide technical infrastructure for live events

5.     eGuide – Association of Event Venues health and safety guidance for events in UK Venues

6.     A-Guide – National Arenas Association health and safety guidance for Arena Events

7.     Approved Code of Practice – not law per se but could be used by courts to determine compliance with the law