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