The London Olympics has focused the
attention on event safety as never before against a background of a government
sponsored review on health and safely law.
There is also uncertainty with regards to the approach that the HSE will
take with their new remit to enforce construction safety at events and powers
to charge businesses for their time in attending and investigating a breach of
regulations. Taken together these
changes represent a significant change in the regulatory environment for the
events industry.
HSE Enforcement of Construction Safety
at Events
The
enforcement of safety in construction activities has now been taken up by the
HSE directly and will no longer, in theory, be enforced by the Local Authority
(LA). It was previously assumed by event
safety professionals that this move prefaced the application of the
Construction Design Management Regulations (CDM) to events, however, this is
not the case. The HSE has set up a
working group to deal with event construction.
The
HSE is responsible for the enforcement of health and safety law in the UK. For events this is usually delegated to the
local authorities who have largely the same powers of enforcement as the HSE. The London Olympics were the catalyst for a
review by the HSE into event construction.
The HSE have decided that they will take on enforcement with regards to
construction at events.
The HSE report, ‘Identification of safety good practice in the event construction and
deconstruction of temporary and demountable structures’ gives us an
important window into their mind-set.
They reviewed six accidents and made six site visits. These were all related to entertainment,
festival or sporting type activities, one dating back to 1994. There is not one mention of exhibitions
except a reference to ‘other events’.
Drilling down into the report it is clear that some generalisations have
been made concerning the events industry as a whole based on a very narrow
focus of research.
Whilst the application of CDM is not
envisaged, it is quite clear that a central theme of the report is a dislike of
the perceived varied and ad hoc approach to management of events and a desire
to impose some form of template in this regard which is worrying.
On the other hand the HSE have a valid point
as the events industry has not covered itself in glory with regards to health
and safety in the past. Also the
findings of this report may be tempered with the findings of the working group
over time.
The
HSE have visited a lot of venues but as yet we have not seen any active
enforcement.
HSE Fee for Intervention
The
HSE proposes to introduce a Fee for Intervention (FFI). It was due to come into force in April but
this has now been postponed until October subject to parliamentary
approval. The regulations put a duty on
the HSE to recover its costs for carrying out its regulatory functions from
those found to be ‘in material breach of health and safety law’. A ‘material breach’ is where in the opinion
of the HSE inspector there has been a contravention of health and safety law
that is serious enough to require them to notify the person in writing. The proposed fee is an hourly rate of £124
chargeable to companies and not individuals.
It applies not only to time on site but any follow up work associated
with the visit including investigations.
The
idea behind it is that the government believes that businesses and
organisations that break health and safety laws should pay for the HSE’s time
in putting right, investigating and taking enforcement action. The hope is that it will encourage
compliance.
The
principle of paying for law enforcement agencies to investigate a breach of law
is not replicated in general law enforcement and a cynic would point to the 35%
budget cut imposed on the HSE as the true rationale. The following is an extract from the HSE
guidance with regards to material breach:
Falls from height
Falls from height are a
frequent and well-known cause of death, or serious injury such as broken bones
and partial or total paralysis.
Some examples of failures
might include:
·
not adequately planning
and/or supervising work at height;
·
not ensuring workers are competent for work at height;
·
not choosing appropriate access equipment where falling from a
height is possible;
·
not inspecting and maintaining access equipment, such as
scaffolding, harnesses or ladders, to ensure it remains effective at preventing
or reducing injury;
·
using forks or a pallet on the forks of a fork-lift truck for a
person to work at height, instead of a suitable working platform; and
·
using damaged/defective
ladders/stepladders, eg splits in timber ladders, cracked welds at rung/stile
connections on metallic ladders, missing rungs or steps and missing anti-slip
devices.
The
full guidance can be found on the HSE website at
It
is still possible that the exhibitions industry will not notice a difference
because, with or without FFI, the HSE’s reach cannot currently encompass the
whole events and exhibitions industry.
That said, the larger events with heavy construction could well receive
a visit.
The
HSE’s view will be heavily influenced by the Olympics and they could make
unfair comparisons given LOCOG’s unparalleled access to resources. There is a danger that the Olympics will
raise the bar on event safety to levels which are not sustainable particularly
in competition with other events business internationally. Working at heights and general site management
in terms of controlled access and site safety discipline will be issues which
the HSE could target and many exhibitions would be vulnerable.
Another
factor will be the reaction of venues and the role of the eGuide. The eGuide may serve to assuage HSE concerns
regarding the exhibitions industry’s ability to regulate itself. Conversely the venues will not want trouble
with the HSE and this will create a pressure for tighter controls. Higher standards are desirable but they must
be sustainable from a business perspective.
Recent
governments have a poor record of producing legislation with unintended and
unproductive consequences. FFI may prove
to be yet another example with the HSE using it to generate revenue to fill a
funding gap and unfairly targeting industries such as exhibitions and
events.
Directors’ Liabilities
Previous
updates have commented upon the apparent developing trend to hold company
directors personally and legally accountable for health and safety
failings. The HSE have now revealed that
the prosecution of directors under s.37 of HASAWA has increased by 400% in the
last 5 years. The HSE denies that this a
targeted campaign but point to wider changes in the legal framework under which
directors operate such as the Corporate Manslaughter and Corporate Homicide Act
and the Health and Safety Offences Act.
Both of these were covered in previous updates. Conversely prosecution of employees under s.7
has dropped sharply indicating a definite shift, deliberate or otherwise, to
focus legal sanction against company directors.
Löfstedt Review
Professor
Löfstedt was tasked by the Government to review UK health and safety
legislation and formerly reported at the end of 2011. He concluded that there is no need for a
radical overhaul of health and safety legislation which he found to be broadly
fit for purpose. He did, however,
propose a review of ‘strict liability’ offences giving rise to civil
compensation even where the employer has done all that is reasonably
practicable to prevent harm1.
Overall
the government’s desire for a common sense approach to health and safety is to
be welcomed; however this is not likely to make any significant difference to
the events industry currently.
Fire Safety Prosecution
Following
a fire in 2008, the first case of a trial by jury under the Regulatory Reform
(Fire Safety) Order has seen a hotel and its director prosecuted and fined for
a failure to conduct a suitable and sufficient fire risk assessment and a
number of other offences under the order.
The director was ordered to pay fines and costs of £230,000. The case is important because it is yet
another example of the fire authorities taking enforcement action and
prosecuting a venue for public endangerment.
Fire legislation is regularly breached, particularly on the build up of
exhibitions and venues and organisers are vulnerable to enforcement action.
eGuide
The
latest eGuide has just been republished.
This rotation has seen some significant revisions. ACC Liverpool, AECC and HIC Harrogate have
adopted the guide. This has meant that
variations in Scottish law have had to be included to accommodate the AECC. The eGuide committee has been restructured
with the formation of a technical committee to review and implement updates and
revisions. This will speed up the process
of responding to end user requests for revisions and incorporating legislative
changes.
Note
1. Stark
v Post Office. The Post Office was found
liable for the injuries sustained by a postman after he fell off his bike even
though the defect which caused the fall was undetectable. The court ruled that the duty to maintain
work equipment in a safe condition was absolute and as the bike was broken that
duty had been breached.
