We face a perfect
storm of a new regulator in the form of the HSE, armed with new and potentially
quite prescriptive regulations with a financial incentive to apply the letter
of the law in an industry where safety is often a matter of judgement.
Duty of Care
I often begin training by pointing out that few industries
other than those involved in public transport have the scale of duty of care
that we regularly take on in the events industry; often placed on relatively
junior shoulders. Daily we deal with
exposure of large numbers of people to significant risk. Our key control is to train those with such
responsibilities to assess and manage those risks. I am often asked about how to manage the risk
of those who seem to wilfully expose themselves and others to serious harm and
the extent to which we are liable. The
recent tragic case of Georgia Varley is case in point and appears to set a
worrying precedent.
In 2011 Georgia was killed when she fell between the train
and the platform as it was leaving the station.
She had a blood-alcohol level nearly 3 times the drink-drive limit, had
taken the drug mephedrone, was wearing high-heeled shoes and having alighted
from the train leaned back against it.
The guard, Christopher McGee, failed to fully appreciate the situation
and allowed the train to depart. He was
prosecuted for gross negligence manslaughter and sentenced to 5 years’.
Only the jury knows why they convicted him but on the face
of it Mr McGee paid a terrible price for what appears to be a momentary lapse
in concentration rather than an act of wickedness. It serves to remind us just how high the
stakes can be in an industry where we constantly battle against, and yet are
held responsible for, mindless acts of recklessness.
HSE enforcement of
event construction and the application of Construction Design Management
Regulations (CDM) at Events
I delayed the ‘summer update’ in the hope of getting
something concrete on CDM. After a
series of meetings with event professionals in the spring, the project went
quiet over the summer while the HSE considered their options and to my
knowledge there have been no new developments although some news has come
following an HSE meeting with the National Theatre.
The draft proposal will shortly be available for
consultation although no date has been set.
The release of the document has been delayed because the HSE are
debating some key points centring on how the key roles in CDM Regulations such
as directors’ duties will be assigned to event management functions. There is also recognition that removing the
Approved Code of Practice which interpreted the regulations, could be
problematic for small companies who lack the resources to do this for
themselves.
One prevailing view is that this is simply a tidying up of
an anomaly whereby construction regulations did not previously apply to event
construction. My concern is that the HSE
have not articulated a business case on the basis of risk versus cost as to why
this is necessary for the events industry much less the exhibitions and
conferences sector. The key driver is to
fall in with Europe although I have yet to see any evidence of any kind of CDM
type regulation applying to European events.
Facilitated by the AEV, the major exhibition organisers,
plus some of the smaller event companies who have picked up on this, have been
engaged with the HSE consultative process.
Notwithstanding I have been dismayed by how many companies particularly
the larger contracting companies appear to be totally ignorant of this import
potential change to the way we are regulated.
It is vital that when the consultative document is released it is
reviewed and commented upon by all event companies with a significant exposure
to event construction.
Fee-for-intervention
(FFI)
To recap, new regulations put a duty on the HSE to recover its costs for
carrying out its regulatory functions from those found to be ‘in material
breach1 of health and safety law’.
The fee is an hourly rate of £124 and applies not only to time on site
but any follow up work associated with the visit including investigations. Now that the HSE have taken over
responsibility for enforcement of event construction it opens up a new avenue
of enforcement action by the HSE at build up and break down. The HSE have issued a list of 9 key areas on
which they will focus and three of these, use of ladders, work at height, and
workplace transport – particularly the separation of work vehicles and
pedestrians – should give us cause for concern.
As well as unannounced visits, RIDDOR reports are being used as the cue
for the HSE to intervene often accompanied by a request to see the company’s
own internal investigation report. On
IOSH courses we continually stress the need for careful handling and wording of
these documents and in response to demand X-Venture now runs a one day course
in dealing with serious accidents.
A freedom of information request reported by UBM’s Safety
and Health Practitioner2 has revealed a yield of £857,000 to the HSE
in the first round up to January 2013, up £100,000 on the previous round. The average invoice was £474. Although an unwelcome unbudgeted item, it is
unlikely that the costs per se will be an issue for event companies. However it is easy to see how, armed with new
CDM Regulations the HSE could come to regard the events industry as a lucrative
source of income and thus FFI will encourage HSE enforcement in the event
sector. Anecdotal evidence from the
summer festival season, which saw significant increase in HSE’s activity and
the issuing of some Prohibition notices as a result, should give us cause for
concern. Contractors appear to have
borne the brunt of this, in one case being issued a notice for failure to put a
mid-rail on a scaffold that was not even being used for access.
Corporate
Manslaughter
There has been much comment in safety journals that following the
introduction of the Corporate Manslaughter and Corporate Homicide Act the
expected dozen or so cases per year simply did not materialise. Since its introduction in 2008 only 3 cases
have been concluded. The prosecuting
authorities, however, are getting the measure of this relatively new law and 63
new cases were being investigated in 2012 up from 45 in 2011. Although the law specifically targets
companies and not individuals, a number of individuals, particularly directors,
have been prosecuted under the related charge of Gross Negligence Manslaughter
or under S.37 of the Health and Safety at Work Act3. This has been
covered extensively in previous updates (still available on our blog site,
xventureblog.blogspot.co.uk). The lesson
as always is to ensure that senior managers involve themselves personally in
ensuring that proper controls are in place and ensuring these arrangements, and
their involvement is accurately documented.
Overall comment
As noted in the last update, one of the early promises of this
government was a bonfire of overly restrictive and burdensome regulations on
business in general yet in the events industry precisely the reverse seems to
be happening. We face a perfect storm of
a new regulator in the form of the HSE, armed with new and potentially quite
prescriptive regulations with a financial incentive to apply the letter of the
law in an industry where safety is often a matter of judgement. Evidence from the summer festival season
seems to bear this out. Notwithstanding
there is still much to play for and informed and robust engagement in the consultation
period for the new CDM regulations will influence the outcome. If we fail to grasp the nettle we will only
have ourselves to blame if the resulting regulation does not suit us.
1.
According to the HSE’s FFI guidelines, a material breach is defined as a
contravention of health and safety law that requires an inspector to issue a
written notice to the duty-holder. This
may be a notification of a contravention, an Improvement or Prohibition Notice
or a prosecution, and must include the law to which the inspector’s opinion
relates; the reasons for that opinion; and the notification that a fee is
payable to the HSE.
2.
‘Readiness to query FFI
costs, but fairness doubts remain’ – July 2013
3.
Section 37 provides for the personal prosecution of members of
management with director level responsibilities where they can be charged as
well as, or instead of, the employer if the offence in question was due to
their consent, connivance or neglect.
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