Tuesday, 9 February 2016

Update January 2016

Looking back on 2015 – has the much promised reduction in regulatory burden had an effect on the events industry?

 The short answer is no.  The 2011 Löfstedt report recommended a range of changes to reduce the health and safety regulatory burden on business.  Few in our industry appreciate that CDM 2015 was one of those changes and it has reduced the burden on the construction industry but it was also newly applied to events as is commented on below and extensively in previous updates.  For events it has had the exact opposite effect of that intended.  In addition, we are facing a considerable increase in potential fines on all businesses and a greater risk of custodial sentences for individuals.  Companies could be fined 100% of their pre-tax profits which could be in excess of £100 million for very large companies.  Anecdotally the introduction of FFI appears to have encouraged the HSE to issue more enforcement notices in the events industry.  The removal of liabilities under HASAWA for the self-employed does not apply to event construction activities and could actually encourage unsafe working which may prove to be a headache especially for less well managed events.  It could be argued that boards of directors of event companies are actually facing a perfect storm of increased liabilities in 2016.
CDM Update

 The HSE guidance for the events industry was due out by the end of 2015 and is likely to be web based.  The HSE have scheduled 40 proactive inspections of events for 2016 which are likely to be the largest most complex events.  There was some enforcement action in 2015 with Prohibition Notices issued to participants for work at height violations and similar.  The HSE have prosecuted a principal contractor working in the construction industry for their failure to provide adequate welfare under CDM 2015.  Whilst generally the provision of welfare facilities is considered one of the less challenging requirements of the CDM Regulations for the events industry, this case serves as a reminder not to overlook it.  The AEO CDM Resource pack is currently being reviewed and updated in line with recent consultation with event industry health and safety professionals.

Received wisdom is that provided we take a sensible and practical approach, the HSE are very unlikely to take enforcement action based on compliance with CDM per se.  They will take (and have taken) enforcement action for obvious breaches of key legislation such as Work at Height Regs.  With the focus on the Client, CDM might increase the focus on senior management of organising companies.  What is less obvious is whether large complex stands will now have to be more directly accountable in law for their actions rather than the organiser which was more or less the default before CDM.  Time will tell. 

Increase in Penalties for Health and Safety Offences could reach £100 million

New tougher sentencing guidelines1 outlined in the previous update, have been challenged in the courts.  Thames Water appealed a £250,000 fine on the grounds that it was too severe but the appeal was rejected.  The ruling stated that sanctions ‘needed to bring home the appropriate message to the directors and shareholders of the company’.  The ruling acknowledged that fines could well equal up to 100% of the company’s pre-taxed net profits for the year even if that amounted to fines in excess of £100 million.  The case follows appeals by Sellafield and Network Rail last year which were also rejected clearly indicating that the judiciary are taking a tougher line with corporate offenders.

Self-Employed Exempt from Health and Safety Law from 1 October 2015

 From 1st October a new law2 means that health and safety law no longer applies to 1.7 million self-employed people in the UK and, potentially, some of those working in the events and exhibitions industry.  This has caused a great deal of concern in the health and safety industry generally and some confusion with regard to self-employed service suppliers at events including self-employed workers sub contracted to larger companies.

 There is a caveat that the new provision does not apply to those working in a situation which gives rise to duties under CDM which means any event construction activity.  In any case professional event organisers and venues require all service suppliers, self-employed or otherwise, to comply with the rules of the site as a condition of entry.  Whilst the new provision does mean that, for example, a self-employed contractor working from home no longer has to comply with health and safety law in that environment, for all practical purposes this new law does not alter the status of self-employed staff and contractors when working on site at events.
ISO 45001 to Replace BS OHSAS 18001

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.

 £500 million loss following Alton Towers accident

Investors like certainty.  When they perceive risk they pull out and so it has transpired following the tragic events in Alton Towers in June when a rollercoaster crashed causing 16 causalities including two who suffered amputations.  Alton Towers could lose as much as £47 million in 2015 and as a result the share price of its parent company Merlin Entertainments has lost £500 million in shareholder value.  These losses are before the inevitable law suits for compensation and possible prosecution by the HSE.  Some might argue that no sanction can make up for a life changing injury but this case serves to illustrate that in the events and entertainments industry financial and reputational losses following an accident can be out of all proportion to the actual offence comparable with other industries.  This is due to a combination of higher profile and higher public expectations of the exercise of duty of care to visitors to any venue.

Guidance for Drones at Events

The HSE and the Civil Aviation Authority have accepted new guidance for the use of drones at events to be included in the NAA A-Guide and considered for the AEV eGuide.  A drone is a Small Unmanned Aircraft with an operating mass of 20 Kg or less.  Over 20 Kg they are subject to the same regulation as manned aircraft and an exemption needs to be sought from the Civil Aviation Authority.  This applies to drones flown externally and the eGuide committee is now considering the wording regarding their use inside venues.

New Welfare Guide Published

The Events Industry Forum (EIF) has announced the publication of a new guide to Welfare at Events, which will be published on the Purple Guide website .  This largely applies to outdoor entertainment events.

Lasers in Exhibitions and Entertainment

The Revision of The Radiation Safety of Lasers Used for Display Purposes HS(G)95 has now been completed and the draft guidance document public consultation phase closed on 11th December 2015.  The new document, now simply titledSafety of Display Lasershas been produced by PLASA in association with the HSE and others. 
Pyrotechnics and Other (non-laser) Special Effects

The changes in European and UN legislation on the governance and management of explosives has led to a significant amount of delay in completing the The  Association of British Theatre Technicians (ABTT) Code of Practice for Pyrotechnics, consequently the development of appropriate training has been affected too.  There is a project running to create a safety rules document that will identify the core of the information required to support the safe installation and use of pyrotechnics in venues which will be produced by the ABTT.

Fibrous and Plaster Ceilings

Following the Apollo Theatre ceiling collapse3, The ABTT has developed a scheme for induction, inspection (both structural and hands on by the plaster specialist) and reporting.  All theatres with fibrous and ornate plaster ceilings are due to have been inspected fully under the new guidance by August of 2016.  

Changes to Chemical Labelling

From June 2015 the law regarding the packaging and labelling of hazardous chemical substances changed which brings Europe in line with UN globally harmonised systems.  Suppliers are to allowed exhaust existing stocks until 2017 although many have anticipated the change already.  The new system, which also affects safety data sheets, retains many of the pictograms of the old black and orange labels, and now uses a red diamond with black pictograms on a white background.  The events industry routinely involves the handling of potentially hazardous substances from cleaning products and glues to pyrotechnics and other special effects.  Full details of the new pictograms can be found in the European Commission guide ‘Chemicals at Work’ available at www.lexisurl.com/hsw93534
Company director jailed for manslaughter

 The boss of a fruit farm has been jailed for two and half years for the death of two workers who suffocated trying to retrieve apples from a nitrogen filled container.  The company was fined £75,000.  Whilst the context has little to do with an event environment the case illustrates the increasing propensity of courts to hand out jail terms to directors whose negligence leads to death or serious injury.

Prosecution Following the Death of a Trainee Electrician.

Grundfos Pumps has been prosecuted and fined £415,000 including costs following the death of a trainee electrician.  The 19-year-old trainee was killed during the electrical testing of a control panel.  The company did not have a risk assessment or safe system of work for the procedure and the victim was not properly supervised.

In the events industry the electrical risks are magnified by the requirement for temporary installations including 3 phase supply, time pressures and multiple contractual arrangements.  The risk is managed by strict adherence to agreed guidance such as the e-Guide.  Notwithstanding this incident illustrates the need for constant vigilance to ensure that standards are maintained.

Grundfos only avoided more serious sanctions with an early guilty plea which is not much of a strategy for risk management.

£45,000 fine for a Blocked Fire Exit
A south Wales recycling firm has just been fined £45,000 for blocked fire exits and other fire safety breaches at their depot (£5,000 for each breach) plus £3,207 costs.  Fire authorities are increasingly making proactive visits to inspect premises which includes event venues within their area.  If the standards fall below an acceptable level when the fire authorities visit they can be expected to use their powers to prosecute.  Under CDM the main duty holder for a tenanted area would be the organiser.

£90,000 fine for Legionella Death

A hospital has just been penalised £90,000 in fines and costs for failing to control Legionella risk in the water systems which led to a death of a patient.  The risk from Legionella bacteria in a building’s water systems is a very serious potential risk particularly in a public building such as an exhibition centre.  The hospital relied on water treatment systems but these were not sufficient to control the risk.  The hospital trust has since spent £1.7 million on improving the water system to control the risk at source.  Some events involve water features which can present a risk and employ a contractor to ensure that it is properly controlled.  Further guidance can be obtained from www.hse.gov.uk/legionnaires.

 1.     Legal Aid, Sentencing and Punishment of Offenders Act
2.     The Health and Safety at Work Etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertaking Regulations) 2015.
3.     Seventy-six people were injured when part of the roof came down during a performance of The Curious Incident of The Dog In The Night-Time at the Apollo Theatre London in December 2013.  It was caused by the deterioration in the hessian wadding embedded in the ceiling originally installed in 1901. 

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