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  In my view the draft guidance misses the opportunity to clarify what is meant by proportionality so it is left to the duty holder to figure out to what extent this law applies to their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

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 12^th 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. 

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.