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.

Dealing with serious accidents

 
In the events industry the risk of a serious accident can never be discounted. 2013 will bring unprecedented changes in the way events are regulated by enforcement agencies so responsible boards should be scrutinising their arrangements to deal with the legal consequences of a crisis of this nature

. This update revisits the key essentials for preparing to handle such a situation.

An organisation’s response to a serious accident in the first few hours can often determine how well an organisation or those individuals implicated come out of it. What is done cannot be undone, but failing to manage the aftermath professionally can make the difference between a controlled crisis and an uncontrolled disaster.

Due to the nature of the events business, event managers on a day to day basis deal with compensation claims for relatively minor injuries and the mistake that is often made is to gear up to deal with a civil law suit. Civil claims, however large, are by definition, limited by insurance cover and will almost certainly come down to an agreed out of court settlement which could include a confidentiality clause to limit reputational damage. In the event of a serious accident the potential claimant is in no position to begin legal proceedings, so other than a timely call to the insurance company, that issue can be dealt with later. Crisis managers would be better to focus on the prospect of the potential for unlimited fines and, in very serious situations, prosecution of individuals accompanied by unfavourable exposure in the media and on social media platforms.

The authorities may respond quickly and will often, in a matter of only hours, decide whether or not to pursue criminal proceedings. In the event of a fatality (or sometimes a serious injury) the police will send a scene of crime officer to determine whether or not the death was an accident or a crime in the sense that it involved foul play. Having established that it is a genuine work related accident (though not the cause) this still leaves the option of a police prosecution for manslaughter against an individual or the corporation1.

Recent updates have covered the HSE’s intention to involve itself directly in event construction and so they could be the lead enforcement agency as well as the local authority in whose jurisdiction the event falls. It must be remembered that the fire

authorities have enforcement powers and would be involved in an incident that was related to fire safety.

First Response



It goes without saying that the welfare of the injured party and those directly involved must be catered for. Harsh as it may seem however, someone has to take a step back and begin to assess and prepare for the legal and reputational consequences that may follow.

The powers of the authorities when it comes to accident investigation are broadly similar so I will cover them together. It is worth noting however that the involvement of the police in a manslaughter investigation is likely to be very intrusive and disruptive and could lead to arrests (a power that the ‘civilian’ agencies do not have).

The first order of business is for duty staff to recognise that this is a major incident that cannot be handled by the event team alone and requires a company level response which must include obtaining professional legal advice.

The investigation



It is vital that those involved carry out their own investigation as soon as it is practical to do so. Events are by their nature transient and key witnesses may be hard to trace later so obtaining their details must begin immediately. The first priority is to establish the facts of the accident.

Happily first aiders have little to do on a day to day basis but when they are confronted with a serious accident they are sometimes prone to speculation; thus a very painful leg twisted out of position becomes ‘a break’. Medical details need to be confirmed by medical professionals at the point of treatment not by first aiders who lack facilities such as X-Ray scanners. A ‘fall from 3m’ may actually have been 2m so someone needs to measure it to confirm. After a delay, data protection concerns may get in the way of establishing the facts so the company needs to act fast to obtain this data. Record the scene with video and stills, take measurements and make comprehensive notes or use a digital voice recorder.

The interview process



The authorities are likely to want to interview individuals and can do so either as ‘witnesses’ or ‘suspects’. The first task is to find out who they wish to interview and if possible in which category. Before a witness interview you are allowed to brief the individual about the likely format and reassure them that the questions they will be asked are just intended to help detail the events in question. You are not allowed to coach them in how to answer the questions. A colleague can sit with them if it makes

them less apprehensive. The interviewee is allowed to ask for a written copy of their statement at the end of the interview although it will be their property not the employer’s. During such an interview they cannot incriminate themselves but can incriminate others including the employer.

If during an interview the authorities form the view that the interviewee is now a suspect or they have decided that an individual is a suspect from the outset they will be cautioned. If anyone is interviewed under caution they will be formerly ‘cautioned’ to advise them of their rights2. They are entitled to legal representation at the interview which should be separate to the legal representation for the employer because of the potential for conflict of interest. Be under no illusions. Health and safety law is criminal law and anyone interviewed under caution in these circumstances is a suspect in a criminal investigation with all that this portends. The interviewer will be trying to secure a conviction and will be well trained in the art of getting interviewees to reveal evidence that will incriminate them or others. It is vital that they have legal representation.

If it is the company itself that is the suspect then the authorities will ask to interview an individual, probably a senior manager to represent the organisation. They will be cautioned but in these circumstances it is the company that is the suspect rather than the individual.

It follows that major incident plans must include the ability to obtain relevant legal advice quickly.

Organisations often make the mistake of leaving the interviews to the authorities. It will be an important part of the response for an organisation to conduct its own interviews of staff and witnesses to assist with its investigation. An employer has no powers to compel employees and others to be interviewed however employees have a legal duty to cooperate with reasonable requests made by an employer on health and safety issues.

There is a detailed article on the techniques police may use to gain information in interviews under caution at www.healthandsafetyatwork.com/hsw/content/talking-out-turn.

The paper trail



The police and other enforcement authorities have powers to demand documents as evidence and this could be extended to computers and hard drives on which they are stored. When dealing with these requests;

 filter all requests for documentation to a single point of contact

　

 make sure that the agency has the power to take the documents requested and that documents/information requested is not protected by legal privilege (see below)

 provide only what is requested, do not simply hand over everything

 keep copies and make a record of all requests.

Legal Privilege



A organisation’s own lawyers will request to see documentation to assess the best way to defend against criminal proceedings. Communications between a lawyer and client are legally privileged and need not be disclosed. Organisations should anticipate which documents may fall into this category and make sure that they are protected before they are seized by the authorities.

This was the subject of an earlier update and a detailed explanation is still available on the X-Venture blog site.

Conflicts of interest



Event management is about teamwork and as event managers we are naturally disposed towards cooperation which is essential for good risk management. It must be recognised however, that in the instance of a serious accident with the potential for prosecution, the venue, organiser, exhibitors contractors and individual employees involved will have competing and conflicting interests not least a strong desire for the outcome of the investigation by the authorities to find that other parties were culpable. It stands to reason that a legal defence will be a lot stronger if all parties involved cooperate, however in the febrile atmosphere of a criminal investigation it is quite likely that this cooperation will break apart. If individuals are being interviewed under caution they will rightly prioritise their own defence over that of their employer or any other individual or company. Organisations must recognise this. There is no simple way of dealing with this however ownership of information, establishing the facts of the case and keeping up to date with the progress of the official investigation is a key element of managing the company’s defence.

How to prepare



It stands to reason that an organisation with a robust health and safety policy and event planning processes centred on risk assessment, which is diligently followed by competent event managers who have received health and safety training is less likely to find itself compromised. A health and safety file should be compiled for every event with key health and safety documentation which will be crucial to a legal defence.

Being on the receiving end of a criminal investigation is likely to be unnerving. In preparing to deal with it there is no substitute for scenario based training even to the point of conducting mock interviews under caution.

These circumstances are fortunately rare but in the events industry the risk of a serious accident can never be discounted. 2013 will bring unprecedented changes in the way events are regulated by enforcement agencies so responsible boards should be scrutinising their arrangements to deal with a crisis of this nature.

Notes

1. The UK Corporate Manslaughter and Corporate Homicide Act facilitates the prosecution of a company following a fatality. (the Corporate Homicide Act is the Scottish law)

A new offence will have been committed if the way in which the company’s activities are managed;

 causes a person’s death and

 amounts to a gross breach of negligence of a relevant duty owed by the organisation to the individual

It does not define what is meant by ‘management failure’ but can be broadly interpreted as systemic failures in the system where standards have fallen far below what can reasonably be expected of an organisation in the circumstances.

Gross Negligence Manslaughter is brought against individuals for a breach of duty which causes death

2. Caution wording in England and Wales is as follows: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." It is not the same in Scotland where an adverse inference cannot be drawn from a suspects failure to answer a question as it can in England and Wales

Corporate Manslaughter - the Lion Steel Case. Are there implications for event directors?

Many would argue that legal action against a company and its directors following a death at work was fully justified.  The case however does raise important concerns regarding the prosecution of individual company directors.

 

In 2008 a maintenance worker for Lion Steel fell from the roof to his death.  The company was charged with Corporate Manslaughter and offences under section 2 of the Health and Safety at Work Act (HASAWA).  Three company directors where charged with Gross Negligence Manslaughter and offences under section 37 of the Health and Safety at Work Act.  In July the company, which has a turnover of £10 million, pleaded guilty and was fined over £480,000 plus £84,000 in costs.  The directors who went to trial were acquitted in a plea bargain arrangement.  The CPS presented evidence of a lack of training, no risk assessment, no safe system of work and lack of supervision.  The facts which lie behind this case should be of concern to all directors and event company directors in particular for a number of reasons.

 

Firstly the Crown Prosecution Service (CPS) tried to establish a de facto ‘carte blanche’ duty of care for all directors to all employees by virtue of their office.  The judge ruled against it on this occasion, but it does not mean that the CPS will not do this again.  Previous attempts to establish a specific Director’s Duty in law have not come to pass but it could come into place by way of case law in a future case.  Part of the reason that it failed in this instance was that it was hard to establish a direct link between the actions of the directors charged, one of whom was the finance director, and the operative on the roof. 

 

The case against the directors did not fail.  They entered a plea bargain arrangement whereby they allowed a guilty plea of corporate manslaughter against the company, in return for the charges against individual directors to be dropped.  It is not hard to see why.  The Directors were facing a range of punishments including, custodial sentences of 2 years to life imprisonment, fines and disqualification from holding a directorship for up to 15 years.  Their trials and the threat of a heavy custodial sentence could have been drawn out over four years possibly resulting in professional and financial ruin even if they were found not guilty.

 

It raises the disturbing question as to whether the CPS deliberately brought these charges against the individuals in order to leverage a corporate plea.  If this is the case we could see more cases of directors automatically potentially facing life imprisonment following a death at work.  And what of these directors’ fiduciary duties to the company and its shareholders?  Surely there was a conflict of interest in sacrificing the company to defend their own cases.

 

Lastly the CPS did not rely on witnesses.  Instead it used documentation and e-mails dating back to 2002 to support its case.  This underscores the need for careful attention to archiving of key documents to prove that directors are routinely discharging their duty of care, from issuing and implementing a proper health and safety policy to ensuring that there are safety files for each event.

 

The law of corporate manslaughter was brought in to target companies and not individuals and yet it appears to be having the perverse effect of encouraging the targeting of individual directors in order to secure a conviction against the company.

 

Lion Steel was not a corporate behemoth, its pre-taxed profits ranged from £187,000 to £317,000 and its highest paid directors received £88,000 per year.  It now faces a struggle to survive commercially with such a hefty fine which they must pay within three years.

 

So what lessons can we derive in the events industry?  Firstly the events business has had its fair share of fatalities; work at height and event construction activity place us at the higher end of the risk scale as an industry.  It is for this reason that the HSE have decided to enforce safety at the construction of events (see previous updates).  The safety industry commentary was critical of the CPS in targeting individuals in this way¹.  In the events industry it would be a lot easier to establish a link between the actions of individual directors and the activities on the event floor particularly with the portfolio structure of most organising companies where senior directors are clearly responsible for specific events.  Any director who is part of the structure of a venue management team would also have clear links with operational activities which would be easy to establish in court.

 

Responsible organisers and venues already proactively manage risk.  This case should prompt a shakedown of policy and procedures in those companies that do not have robust risk management processes.  All companies should look carefully at their major incident handling plans in terms of processes in place to defend the companies and its directors against charges of corporate or individual gross negligence manslaughter respectively.

 

 

Note.  1.  Safety and Health Practitioner August and September Issue, Health and Safety at Work October issue.