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SAFETY & HEALTH

PRACTITIONER

Legislation Update
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Contents
Foreword.............................................................................................................................................................................................. 3
Section 1: Looking Back........................................................................................................................................................... 4
Recognition of Mental Health Issues in the Workplace....................................................................................... 4
Reclassification of Mild Welding Fume as a Human Carcinogen.................................................................. 8
Sentencing Council Published New Manslaughter Definitive Guidelines................................................ 10
Larger firms face biggest fine increases: Sentencing Council impact assessment shows......... 14
Bouncy Castles and Other Play Inflatables: Safety Advice................................................................................ 15
Revision of Standards for Powered Doors, Gates and Barriers....................................................................... 15
PPE.......................................................................................................................................................................................................... 15
Modern Slavery Act Review.................................................................................................................................................... 17
Key Cases in Recent Months................................................................................................................................................. 17
Section 2: Looking Forward ................................................................................................................................................... 21
Drone Safety .................................................................................................................................................................................... 21
Health and Safety (Amendment) (EU Exit) Regulations 2018......................................................................... 22
Ionising Radiation......................................................................................................................................................................... 22
Safety, Health and Welfare at Work (Diving) Regulations 2018 (Ireland)................................................. 24
Section 3: Environment............................................................................................................................................................. 26
Section 4: Energy........................................................................................................................................................................... 29
Resources........................................................................................................................................................................................... 31

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Foreword
Between 19 and 21 December 2018, hundreds of flights were cancelled at Gatwick
Airport following reports of drone sightings close to the runway. The reports
caused major disruption, affecting approximately 140,000 passengers and 1,000
flights. It was the biggest disruption since ash from an Icelandic volcano shut the
airport in 2010. And in January this year, departures at Heathrow were suspended
for about an hour after a drone was sighted. Short by comparison to the Gatwick
incident – but still enough to cause severe disruption.

Now, a drone ‘no-fly zone’ has come into force, making it illegal to fly a drone
within 5km of an airport, with major penalties for those who break the law. The
change comes ahead of a new Drones Bill (set for later this year), which will give
police significantly increased powers to deal with those using drones illegally. In
March 2019, MPs announced an inquiry into the use of drones. The investigation,
by the Science and Technology Select Committee, will examine the effectiveness
of safety measures built into drones and what anti-drone technology is available.
While the majority of drone users fly safely and responsibly, clearly more
legislation is needed to ensure the police are able to deal with those using drones
to cause disruption, or harm. It’s a global issue, with the European Commission
announcing last June a new ‘EASA regulation’ to replace the 2008 framework. The
reforms include rules around registration for drone users in a bid to control the Alison Fava
‘liabilities’ they pose in terms of data protection, privacy, noise and CO2 emissions. WRITER FOR SHP ONLINE

Staying with the EU, Brexit is fast approaching an uncertain climax and continues
to dominate the political and legislative landscape. This Update covers some of
the relevant ‘EU Exit’ regulations that have been issued in recent months, aimed at
ensuring that EU-derived protections will continue to be available in domestic law
after the UK has left the EU.

The Health and Safety (Amendment) (EU Exit) Regulations 2018, for example,
will amend 11 sets of regulations and one directly acting EU regulation, and
include changes to (amongst others) the COMAH Regulations 2015, the COSHH
Regulations 2002, and some regulations in the offshore sector. There are some
who would have liked to seize the opportunity the exit from the EU could provide
in terms of cutting through unnecessary red-tape, however these regulations show
little sign of doing that. But while the EU Exit regulations are completely in line with
existing EU rules, it is possible that future UK governments could change elements
of the law and, potentially, create differences between EU and UK legislation.

Aside from Brexit, complying with health and safety legislation remains one of the
most important responsibilities of any business. Failure to implement the right
worker protections can, in the most extreme cases, cause loss of life, and lead to
hefty fines or even imprisonment for those responsible.

We continue to read reports of sanctions and fines that have been issued for
breaches of health and safety legislation, and there has been a marked increase
in the level of fines imposed. The recent manslaughter guidelines from the
Sentencing Council, which came into force in November 2018, may increase
sentences in some gross negligence cases – such cases often apply in a health
and safety context.

Now more than ever, senior executives need to ensure that they are not found
culpable of cost cutting or completely disregarding the safety of employees, and
ensure they understand how boardroom decisions can impact the health and
safety of their workforce.

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Section 1: Looking Back

Recognition of Mental Health Issues in
the Workplace
Mental health remains one of the biggest challenges affecting employers
and the workplace today, with one in six workers experiencing some form of
stress, anxiety or depression, according to research from the mental health
charity MIND.

Recent developments and publications in this area have included the

following:
In December 2018, the government announced it would introduce a new
Mental Health Bill to transform mental health care, following publication
of the final report from the Independent Review of the Mental Health Act
1983. The government accepted two of the review’s recommendations to
modernise the Mental Health Act. Mental Health First Aid England produced
guidance to help employers introduce mental health first aiders into their
workplaces and better understand their responsibilities and boundaries.
The Implementing Mental Health First Aiders Guide for employers offers
advice on areas ranging from the role that senior leaders and line managers
can play in championing mental health initiatives, to evaluating the level of
support on offer and assistance pathways already in place.

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HSE publishes first aid guidance on mental health

The Health and Safety Executive’s (HSE) updated first aid guidance states
companies should consider ways to “manage mental ill health in your
workplace which are appropriate for your business.” We look forward
According to the guidance, this could include providing information to achieving
or training for managers and employees, employing occupational
health professionals, appointing mental health-trained first aiders and legislative change
implementing employee support programmes.
so that Health and
“The guidance is an important step towards supporting employees’ mental Safety regulations
health, but we are clear that equality will only truly be reached when the law
demands that every workplace must make provision for mental, as well as are designed to
physical, first aid,” said MHFA England Chief executive, Simon Blake.
protect our whole
“We look forward to achieving legislative change so that Health and Safety
regulations are designed to protect our whole health, mental and physical.” health, mental and
Thames Water’s Chief Health, Safety & Security Officer, Karl Simons, added: physical.
“Mental Health First Aiders at Thames Water have been a catalyst for
engagement, providing our employees with the confidence to come forward
and seek support at their time of need.

“The HSE’s guidance is a welcome step forward, but legislative change is

needed if we want see real progress across society. At Thames Water we
record five mental health first aid interventions for every physical first aid
intervention, so it’s essential that every workplace has access to first aid
support for both mental and physical health.”

Mental health training

Heather Beach from The Healthy Work Company explained that whilst the
guidance did not mention the MHFA courses specifically, it did say “you
might decide that it will be beneficial to have personnel trained to identify
and understand symptoms and able to support someone who might be
experiencing a mental health issue.”

“The guidance, issued following pressure from industry, was delivered more
or less in tandem with two reports which contained concerns about some
implementations of MHFA to date – one delivered by IOSH and one by HSE
themselves. The key concerns raised by the HSE report was the lack of
evidence that MHFA training programmes has improved the management
of mental health in the workplace (though it did point to a lack of research
and MHFA further pointed out that case studies had not been part of their
research). The second report, issued just days after the announcement from
HSE of the new guidance, was research from the University of Nottingham,
commissioned by IOSH. This found significant issues with certain
implementations of MHFA such as unreasonable demands on mental health
first aiders.
Hear from
“Both IOSH and HSE are clearly motivated in their critique by the fact that the Heather Beach
hierarchy of risk control and a prevention first approach to health and safety, at Safety & Health Expo 2019
does not support training as a first port of call. A go-to position which making
mental health training a mandatory provision, might encourage.“
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The HSE’s guidance

is a welcome
step forward, but
legislative change is
needed if we want
see real progress
across society.

So, should you train without an overarching wellbeing strategy? Does this
new guidance just encourage a ‘box-tick’ mentality?
“Firstly, whilst the HSE report did not demonstrate the MHFA course leads
to improved management of mental health, there is a huge body of evidence
– both quantitative (from MHFA) and qualitative (from clients such as ours)
that it increases understanding and confidence in having a conversation
about mental health, as well as shifting culture. We do not have evidence
(as some mental health professionals would assert when they criticise the
training) that ‘a little knowledge is a dangerous thing’. Quite the reverse.
Many people describe it as the best course they have ever done, encouraging
them to better self-awareness and understanding, greater tolerance of
others and improved listening skills.

“This is all well and good if you are using the MHFA course to raise general
understanding and awareness. The difficulty comes in the appointment of
official mental health first aiders without due consideration for what that
role should look like in your organisation. Furthermore, it is in concentrating
only on peer to peer support – not looking at how you train your managers
differently – in understanding their legal obligations and their roles in their
team’s mental health for example.”

How to implement mental health first aid in the

workplace
So far, around 15,000 organisations across the country have trained staff
in MHFA England courses. Statistics recently released by the Health and
Safety Executive show 15.4 million working days were lost in 2018 due to
work-related stress, depression and anxiety.

Employers are advised to lay the groundwork within their organisation

by asking, ‘How healthy is your workplace now?' By understanding where
an organisation is on the ‘journey’, will help inform of the correct strategy
and approach and how best to communicate that message within the
organisation.

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Whole organisation approach

Simon Blake OBE, Chief Executive, Mental Health First Aid (MHFA) England,
commented: “Mental Health First Aid training should always be one part
of a ‘whole organisation’ approach to mental health – helping thousands Mental Health
of employers to implement the core standards for a mentally healthy
workplace, as set out in the Government’s ‘Thriving at Work’ review, including First Aid England
improving mental health awareness and encouraging conversation about the
support available.” training sits at the
The guidance was developed in consultation with firms such as Thames heart of our skill-
Water, PwC, Royal Mail, and Three UK and includes advice on how to recruit,
promote and support staff trained in Mental Health First Aid.
focused mental
Karl Simons, Chief Health, Safety & Security Officer at Thames Water, said: “As
health programme.
a major employer that has embedded mental health first aiders throughout
our business, I’m delighted Thames Water has supported the development of
this guidance, which will assist all employers to bring parity between mental
and physical first aid in the workplace.

“The introduction of mental health first aiders, as part of our Time to Talk
Strategy, has led to a cultural revolution across Thames Water. Mental health
first aiders are a catalyst for engagement, providing our employees with the
confidence to come forward and seek support at their time of need.”

Sally Evans, Wellbeing Lead, PwC, added: “By offering this guidance, MHFA
England is providing a clear set of considerations for employers looking at
how to implement Mental Health First Aid training – whilst also respecting
that organisations of different shapes and sizes will need to take different
approaches.”

To date PwC has trained three fully-qualified MHFA England instructors.

This in-house approach has ensured that MHFA England training can be
continually delivered across the firm.

Laura Hinton, Chief People Officer, PwC UK, commented: “Mental Health First
Aid England training sits at the heart of our skill-focused mental health
programme. It is central to the behavioural change we are working on, and
essential for the development of our senior business leaders, career coaches
and the people they look after.

“It has been very well received so far and there is huge enthusiasm and
appetite for it. We can already see anecdotally that people are more
confident discussing mental health as a result of the training. We are now
looking to develop impact measures to help refine our approach on an
ongoing basis.”

The Role of the Mental Health First Aider

Alongside this new advice, strengthened guidance on the role of the person
trained in Mental Health First Aid skills has also been published to support
the Role of the Mental Health First Aider. This covers the boundaries and
responsibilities of those qualified at different levels; as Mental Health First
Aiders, Mental Health First Aid Champions and Mental Health Aware.

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Mates in Mind calls for action

The charity Mates in Mind has called on business leaders to address mental
health in the workplace. The charity said it was “encouraged” by a recent
debate in the House of Commons on the subject but, warned more must This is not just
be done to achieve a “fundamental change” in workplace mental wellbeing.
It has also appealed to leaders across UK’s industries to take note of the about time off
growing evidence of need and, also the means by which to take action. This
includes the standards recommended by the Stevenson/Farmer review of work, because
mental health and employers, published in October 2017.
many people end
The debate featured contributions from various MPs, including Luciana up falling out of
Berger, Johnny Mercer and Norman Lamb. In his speech, the Liberal
Democrat MP Norman Lamb quoted figures from the Health and Safety work and on to
Executive, which show that 57% of days off work through ill health are due
to mental ill health of one sort or another. “This is not just about time off benefits.
work, because many people end up falling out of work and on to benefits,
and others turn up to work but under-perform — the concept of presenteeism
— because they are not feeling on top of their game, or because they are
obsessed by anxieties or concerns that prevent them from performing their
work responsibilities effectively,” said Mr Lamb.

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at Safety & Health Expo

18-20 June, ExCeL London

Discover the latest developments in mental health and wellbeing
at the Workplace Wellbeing Show, a brand-new feature at
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• W
 ellbeing Theatre: relevant content for FMs, HR professionals and
H&S practitioners eager to improve the wellbeing of their workforces
• Healthy Eating Café: salad boxes and delicious protein power bowls
to promote healthy eating in the workplace
• Wellness Wall: experts from IWFM share ideas on how to encourage
workplace wellbeing

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Reclassification of Mild Welding Fume as

a Human Carcinogen
The International Agency for Research on Cancer released new scientific
evidence that exposure to mild steel welding fume can cause lung cancer
and possibly kidney cancer in humans. As a result of this evidence, The
Workplace Health Expert Committee endorsed the reclassification of mild
steel welding fume as a human carcinogen.

In February 2019 the HSE issued bulletin STSU1 – 2019. This targeted all
employers and workers in any industry, including the self-employed and
contractors, who undertake welding activities, including mild steel. There
was an immediate effect thanks to a strengthening of HSE’s enforcement
expectation for all welding fume, including mild steel welding, because
general ventilation does not achieve the necessary control. Mary Cameron,
Occupational Hygiene Team Leader at SOCOTEC, gives an overview of the
changes and why control measures are fundamental to protecting employee
health and safety.

Welding fume contents and risks

Welding fume is a complex and varying mixture of airborne particles,
vapours and gases which arise from the thermal manipulation of metal
materials. The fume particles formed from the vaporisation of molten metal
as well as by-product vapours and gases may cause a wide range of adverse
health effects. Welding on painted, plated, galvanised or degreased metals
may cause additional inhalation exposure concerns. Depending on the job’s
specific circumstances, physical hazards should also be considered such
as heat stress, EMF and noise exposure. As with any hazardous process, all
aspects should be considered when undertaking the risk assessment and
control measures implemented accordingly to reflect the level of risk.

What control measures need to be implemented?

It must be understood that general ventilation does not achieve the essential
welding fume exposure control. Control of exposure to carcinogenic
fumes requires more effective engineering controls, such as local exhaust
ventilation (LEV), which allows for at-source fume extraction thus preventing
welding fume from spreading into the surrounding workplace and entering
the worker’s breathing zone. Indoor welding tasks require the use of LEV. If
LEV is unable to control fume capture then Respiratory Protective Equipment
(RPE) is also required. Appropriate RPE should be also provided for welding
outdoors. Regardless of the duration of exposure, the HSE will no longer
accept any welding undertaken without suitable exposure control measures
in place as there is no known level of safe exposure. Adequate exposure
control measures are a necessity and for good reason.

Illness caused by welding fume exposure

Welding fume inhalation has long since been understood to be hazardous to
health, even before the most recent HSE announcement classifying of mild
steel welding fume as a human carcinogen. Welders are more prone to lung
infections, reduced lung function and may experience irritation of the throat and
lungs. Welders may also experience flu like symptoms after welding (metal fume
fever) which is usually linked to welding on galvanised metals, as well as mild
steel. Adverse health effects from exposure to manganese (present in mild steel
welding fume) may include neurological effects similar to Parkinson’s disease.

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Welding stainless steel can produce hexavalent chromium which is a lung

carcinogen. Stainless steel fume may also contain chromium oxide and
nickel oxide – both of which can cause asthma. Iron is present in most
forms of welding fume and may cause siderosis which is the deposition of
iron oxides in lung tissue. This vast array of health effects is staggering and
so the need for effective exposure controls is critical:

• Suitable control measures must be applied, regardless of welding

duration and including outdoors welding;
• The employer must ensure welders are suitably instructed and trained in
the use of any exposure controls (e.g. LEV, RPE);
• All engineering controls should be correctly used, suitably maintained
and subject to thorough examination and testing (if required under
COSHH Regulation 9) and RPE must be subject to an RPE programme.

The change in enforcement expectations for control of welding fume

exposure should be reflected in the risk assessment and in the current
control measures on site. Control measures should be replaced or be
improved upon if required as per the risk assessment and in order to reflect
the reclassification of mild steel welding fume as a human carcinogen.

Ensuring compliance
Occupational hygienists identify hazardous agents (physical, chemical and
biological) in the workplace that can cause occupational disease or discomfort.
The aim is to evaluate the extent of the risk due to exposure and recommend
the best controls to prevent ill-health. At SOCOTEC, our occupational hygienists
often attend metal fabrication sites to undertake workplace exposure
monitoring (including welding fume exposure) and control measure evaluations.
Occupational hygienists can help employers in their COSHH compliance
programme by assessing the worker’s exposure to hazardous substances and
also by undertaking examination of control measures in place to ensure continued
performance or recommend improvements. Occupational hygienists are there to
assess, advise and improve upon workplace hazards. SOCOTEC’s understanding
in the risks involved in a wide variety of workplace activities makes us highly
capable to recommend effective exposure prevention and controls measures.

Sentencing Council Published New

Manslaughter Definitive Guidelines
Under the new guidelines employers or managers convicted of gross
negligence manslaughter after a workplace fatality are likely to face longer
prison sentences. Manslaughter by gross negligence occurs when the
offender is in breach of a duty of care towards the victim and the breach
causes the death of the victim, and, having regard to the risk involved, the
offender’s conduct was so bad as to amount to a criminal act or omission. In
a work setting, it could cover employers who completely disregard the safety
of employees. The guideline came into force in courts in England and Wales
on 1 November 2018.

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New sentencing guidelines propose jail terms of

up to 18 years for gross negligence manslaughter
Although the highest sentences apply to individuals whose disregard of
safety was motivated by cost-saving and where there is a “blatant disregard
for a very high risk of death”, the sentencing will still rise for medium
culpability cases. Dr Simon Joyston-Bechal, Director at Turnstone Law, goes
into detail as to what the changes could mean for you.

The Sentencing Council published its definitive guidance on 31 July 2018

covering new sentences for individuals who commit manslaughter. This
includes a step-by-step guide that judges must follow in determining
sentences for gross negligence manslaughter, which is the most serious
offence that can be committed by an individual for a health and safety
breach. The new rules came into force for sentences imposed from 1 Dr. Simon Joyston Bechal
November 2018, but it is retrospective in that it will apply to existing cases
DIRECTOR AT TURNSTONE LAW
that have not concluded before that date. The message for the boardroom
is to sit up and take note and above all to avoid the worst culpability
flashpoints of cost saving and disregarding a very high risk of death.

How does this relate to the 2016 sentencing guidelines for health & safety?
The sentencing guidelines introduced in February 2016 for health and safety
offences and corporate manslaughter have led to a steady rise in fines for
companies, as well as a reduced threshold for individuals to be sent to jail
under the two-year maximum term for health and safety offences. Gross
negligence manslaughter is committed by an individual whose gross breach
of a duty of care causes or significantly contributes to a death. This offence
was excluded from the guidelines in 2016 and we can now see that it is
the Sentencing Council’s intention that, for workplace cases, it will also be
punished more severely than before.

How are the proposed new sentences calculated?

There are four levels of culpability, from ‘low’ to ‘very high’, each of which
leads to a different starting point jail term. The starting points are:

• Very high: 12 years • Medium: 4 years

• High: 8 years • Lower: 2 years

Other factors can then be taken into account to move you down a little or up
a lot within a specified range around each starting point. For example, the
‘very high’ range is 10 to 18 years and you move up the range if, for example, Join Simon at
more than one person was put at risk or you ignored previous warnings.
Safety & Health Expo,
High culpability
18-20 June at ExCeL London.

A number of factors are listed to enable the judge to determine the right His sessions, 'Legal masterclass for
culpability category. In a typical case arising in the workplace, the most health and safety professionals:
likely factors that would put you into the ‘high’ culpability category are: cost Part 1 & 2', will take place at the
saving as a motivation for the breach; and “blatant disregard for a very high Keynote Theatre,
risk of death”. In the absence of these two factors, a typical workplace case 19th and 20th June,
would most likely be in the medium culpability category, with a range from
10:40 - 11:20.
three to seven years - currently a sentence length reserved for the most
serious end of the spectrum. It represents an increase in sentence for typical
cases, as intended. If cost saving is part of the motivation, then that would REGISTER NOW FOR
indicate ‘high’ culpability (starting point eight years, with a range from six
to 12 years). With hindsight, cost saving can quite often be shown by the YOUR FREE TICKET

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prosecution to have been a part of the reasoning for a breach in workplace

cases. If there was a “blatant disregard for a very high risk of death”, that
would similarly indicate ‘high’ culpability. This test requires the disregard
to be blatant, but there is a question as to whether the word 'blatant' raises
the bar here. If you have disregarded a very high risk of death, someone has
died and you have been convicted of gross negligence manslaughter, won’t
that always be seen as ‘blatant’? If so, the bar set for this factor is that there
must be a ‘very high risk of death’. That will be looked at with the hindsight
of a death having happened, so it will apply in many cases but not all.

Very high culpability

A case is likely to be taken into the ‘very high’ culpability category if there are
a combination of ‘high’ culpability features. This would apply to workplace
cases if you were saving costs and you (blatantly) disregarded a very high
risk of death. It leads to a starting point of 12 years imprisonment with a
range from 10 to 18 years. It seems to me that this very much escalated
sentence will apply to a significant proportion of workplace cases – clearly
the worst ones.

For example, consider the owner of an Indian restaurant, saving money by

purchasing ground peanuts instead of ground almonds, aware of a previous
incident of a peanut allergic reaction and nonetheless continuing to describe
dishes falsely as free of peanuts. Or the boss of a construction company,
having been warned that a worker had fallen from a roof on a project,
continuing to get the project done to avoid the delay and cost of introducing
safeguards, and then a worker falls to his death.

And Grenfell reminds us that product related cases could come up in future.
Imagine if you have supplied or used a construction product in the past (not
just cladding panels), you have become aware that it poses a serious safety
risk, and yet you decide to avoid the costs that would arise from warning
and replacing the products at your expense. A fatal accident in these
circumstances could have all the ingredients for the longest jail terms – very
much longer than at present.

What do the changes mean?

The changes mean that not just for the worst cases but now for typical
workplace cases of gross negligence manslaughter, we can expect four-
year jail terms. But for cases that exhibit one or both of the new flashpoint
features (cost saving and disregarding a very high risk of death), we
can expect to see jail terms starting at eight years and twelve years and
potentially going up higher.

There will be two schools of thought as to whether that is to be welcomed,

but it is very much less draconian than the original proposals by the
Sentencing Council. I successfully led a lobbying exercise in the consultation
on behalf of the Health and Safety Lawyers Association; and the Sentencing
Council accepted my arguments that two of the ‘high’ culpability features
that they previously proposed should be dropped.

The first was that merely being aware of a risk of death arising from your
breach should take you to ‘high’ culpability. The second was that if the
breach persisted for weeks or months, that should also take you to ‘high’
culpability. So those of us defending cases should be very pleased that
these new guidelines, although increasing sentences, do not do so as much
or in the unfair way that was previously planned.

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Message for the boardroom?

The message for the boardroom is clear. Senior executives need to be aware of
the behaviours that can get them into the worst trouble and proactively lead an
agenda of compliance. Furthermore, these guidelines can be harnessed as a
tool to train directors and senior executives as to the importance of setting the
right tone at the top.

Develop your legislative knowledge

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•  Effective investigation implementation

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Larger firms face biggest fine increases:

Sentencing Council impact assessment shows
The average fine handed to organisations found guilty of safety offences has
risen since the new sentencing guidelines were introduced, according to figures
published by the Sentencing Council. In particular, there has been a considerable
increase in fines for larger organisations. This had been anticipated, it says,
following the introduction of the new sentencing guidelines. An impact
assessment of the Health and Safety Offences, Corporate Manslaughter and
Food Safety and Hygiene Offences guideline for England and Wales, which
came into force in 2016, also shows an increase in fines for:

• Food safety and hygiene offences for organisations, but the increase was
less pronounced than that for health and safety offences
• Corporate manslaughter offences, but due to low volumes this finding
should be treated with caution

There were several unanticipated changes including:

• An increase in fines for smaller organisations and individuals (which was
not anticipated) sentenced for health and safety offences
• A change in the use of some sentence types for individuals sentenced for
health and safety offences
• A small increase in fines for individuals sentenced for food safety and
hygiene offences

Analysis carried out by the Sentencing Council of Crown Court judges’ sentencing
remarks suggests that the guideline is generally being applied in the way it was
intended. The Council says it has considered this analysis, particularly the findings
in relation to the fines imposed on smaller organisations and individuals. The
Council adds that it intends to investigate further the operation of the guideline
in due course and will consider at that stage whether any revision needed.
Sentencing Council Chairman Lord Justice Holroyde said: “The law requires
that any fine imposed must reflect the seriousness of the offence and take into
account the financial circumstances of the offender. The Council is confident the
guideline is achieving this objective and ensuring that where an offence results in
the loss of life or very serious injury, fines are sufficiently punitive.”

Business activity
Prior to the Sentencing Council’s guideline coming into force in February 2016,
a guideline produced in 2010 by the Sentencing Guidelines Council (SGC) was
in use for organisations sentenced for corporate manslaughter and health and
safety offences causing death. The guidelines cover offences committed by
organisations or individuals in the course of their business activities in England
and Wales. They do not cover prosecutions of individuals for offences committed
in the course of their private lives and do not cover food fraud offences.

The guideline covers the following offences:

• Health and Safety at Work Act 1974 (HSWA); section 33(1)(a) in relation
to breaches of section 2, section 3 and section 7; and section 33(1)(c)
• Food Safety and Hygiene (England) Regulations 2013, regulation 19(1)
• Food Hygiene (Wales) Regulations 2006, regulation 17(1)
• The General Food Regulations 2004, regulation 4
• Corporate Manslaughter and Corporate Homicide Act 2007, section 1

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Bouncy Castles and Other Play Inflatables:

Safety Advice
In December 2018, the HSE issued revised guidelines for commercial
operators of inflatable play equipment. The move followed the 2018 fatality
in Norfolk involving a child and a bouncy castle, and an incident on an
inflatable slide in Woking where several children were injured and taken to
hospital.The guidelines apply to the supply, hire and use of inflatables for
commercial purposes and applies to inflatables devices used both outside
and inside.

Revision of Standards for Powered Doors,

Gates and Barriers
In November 2018, the HSE issued a safety bulletin concerning the revision
of Standards for Powered Doors, Gates and Barriers – namely BS EN
12453:2017 and BS EN 12604:2017.

These new standards replace four older standards from 2000 and 2001;
the HSE described them as ‘a significant move forward’. However, its safety
bulletin pointed out that these standards do not completely address the
risks that may be present and additional consideration should be given to
the following aspects:

• Undertaking a risk assessment covering the unique environment and type

of user;
• The selection and implementation of appropriate design measures;
• Ensuring appropriate levels of force limitation (below the specified
maximum);
• Where the technology permits, ensuring that the safety function is
monitored and checked before each movement;
• Ensuring effective measures are in place to detect any means of failure in
the means of suspension for vertically moving doors.

PPE
The Personal Protective Equipment (Enforcement) Regulations 2018/390
were enacted into UK law from 21 April 2018 to ensure that 2016/425 is
complied with and provide enforcement powers to the authorities where the
requirements are not met. The aim of this regulation is to ensure common
standards for personal protective equipment (PPE) in all Member States in
terms of protection of health and the safety of users, while enabling the free
movement of PPE within the Union.

A transition period of one year (21 April 2018 to 20 April 2019) was applied,
where both the old Directive and the new Regulation are applicable.
Therefore PPE designed and manufactured in accordance with Directive
89/686/EEC could still be placed on the market until 21 April 2019.
EC type-examination certificates and approval decisions issued under the
old Directive shall remain valid until 21 April 2023 unless they expire before
that date.

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PPE non-compliance costing businesses

£79bn a year
The improper use of personal protective equipment (PPE) has cost
businesses around £79bn in the last year alone, according to research by
To our surprise, the
AI company Cortexica. The company claims the vast majority (84%) of
businesses operating in a high-risk environment lost money from injuries
report highlights
due to PPE non-compliance in the last year. many businesses
According to the research, almost a third (30%) of those businesses lost are still manually
more than £250,000 and 5% lost more than £1m. It also found that around
29% of workplace injuries last year in companies operating in high-risk monitoring PPE
environments could have been prevented through the proper use of PPE.
And injury claims, injured and absent workers and the purchase of new compliance.
equipment are the biggest costs for companies following PPE failure.

The report also found 84% of businesses surveyed still rely on manually
checking employees for PPE compliance. But more than three quarters (78%)
said they also believe that AI systems would reduce the risk of accidents by
flagging up potential issues. And almost two thirds (64%) said they intend to
invest in AI and machine vision systems to monitor employees PPE within
the next five years.

“Personal Protection Equipment compliance is something that businesses

operating in high-risk environments have to get right, and the report
highlights why”, said Cortexica Chief Executive, Iain McCready. Not only
do they have a duty of care to their employees, but they need to protect
themselves from the financial consequences of injuries in the workplace.

“To our surprise, the report highlights many businesses are still manually
monitoring PPE compliance, even with a number of industry-ready AI
applications on the market that can reduce these risks,” added Mr McCready.

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Modern Slavery Act Review

An independent review of the Modern Slavery Act 2015 (MSA 2015) is being
conducted. The government commissioned Frank Field MP, Maria Miller
MP and Baroness Butler-Sloss to run the review in order to strengthen and
enhance the current legislation as modern slavery evolves.

The review is considering specific provisions in the Act, including (amongst

other things) the effectiveness of the provisions in the MSA 2015 which
requires companies with an annual turnover of £36 million or more to publish
a statement on their website outlining what they are doing to prevent and
tackle modern slavery in their operations and supply chain, alongside any
potential improvements.

Having conducted an audit of annual anti-slavery statements, the Home

Office will be publishing a list of businesses that have failed to publish their
statement for the 2018 financial year.

Key Cases in Recent Months

Some recent key prosecutions serve as a reminder of what can happen when
companies breach legislation:

Court of Appeal reduces level of fine on

obtaining ‘likelihood of harm’ evidence
A recent Court of Appeal decision underlines the importance of obtaining
expert evidence on the ‘likelihood of harm’ when responding to a health and
safety prosecution. Dr Simon Joyston-Bechal, Director at Turnstone Law,
explains more.

If your organisation or employees are prosecuted for a health and safety

breach, your main focus will be whether to defend the prosecution or plead
guilty. You may need to call an expert witness to show that everything
reasonably practicable had been done, which is the test of your innocence. But
the recent Court of Appeal decision in R -v- Squibb Group Ltd underlines the
importance of thinking ahead and additionally obtaining expert evidence on
the ‘likelihood of harm’, in this case cutting the eventual fine by more than half.

What was the factual background?

Squibb was engaged as demolition sub-contractor on a refurbishment
project at a school in Waltham Forest in North London in 2012. An asbestos
survey had been provided for the principal contractor, Balfour Beatty
Regional Construction Services Ltd, which wrongly reassured Squibb that
there wasn’t an asbestos problem in the relevant part of the school where
Squibb was working. Squibb did not themselves properly review the survey.

The survey was ambiguous and by the time one of Squibb’s employees
discovered a large clump of asbestos above a suspended ceiling, it became
apparent that they had been demolishing parts of the building that contained
widespread asbestos – and without the proper precautions.

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Crown Court proceedings – July 2017

Balfour Beatty and the project management company pleaded guilty to
health and safety offences. Squibb considered they had done everything
reasonably practicable in relying upon the reassurance from Balfour Beatty
and took the case to trial – unsuccessfully. The jury decided Squibb were
guilty of an offence under Section 2 of the Health and Safety at Work Act
1974, having not done everything reasonably practicable to avoid exposing
their employees to asbestos.

The Crown Court judge then followed the sentencing guideline that had
been introduced in 2016. He needed to decide upon a variety of sentencing
factors in order to follow the tables in the sentencing guideline and allocate
the correct fine. He decided there was ‘high culpability’ and that there had
been a risk of death from asbestos related cancer (‘Level A’ seriousness of
harm risked).

The defence team put forward a report from an expert witness that the risk
of anyone dying from this asbestos exposure was less than 1 in 1,000. The
judge nonetheless allocated the likelihood of harm as being ‘Medium’ and
when allowing for other factors, including the medium sized turnover of
Squibb (£46million), he fined Squibb £400,000.

Court of Appeal – February 2019

Squibb appealed on a number of grounds and the Court of Appeal were
reluctant to disagree with the Crown Court Judge’s findings – except on
one point. The Court of Appeal did not see how a risk of death, assessed by
Squibb’s expert as being less than 1 in 1,000, could have been determined
to be ‘Medium’, so they changed that factor to ‘Low’. Working through the
sentencing tables, that single step alteration to a single sentencing factor
led to the Court of Appeal reducing the fine from £400,000 to £190,000. If
Squibb’s turnover had been a fraction larger, in the category over £50million,
then following the same reasoning this single factor would have changed the
fine from £1million to £500,000.

Why is this type of expert evidence rarely used?

Lawyers defending health and safety cases know that each of the factors in
the sentencing guideline can have a dramatic effect upon the fine. Yet they
do not very often submit expert evidence on the ‘likelihood of harm’ or the
‘seriousness of harm risked’, even when it could be helpful.

There are various reasons for this:

• The main focus in a trial is whether everything reasonably practicable

was done, and this often requires evidence from an expert witness, who
will not necessarily also have expertise on the likelihood of harm. For
example, the expert giving an opinion on whether more should have been
done to plan a lifting operation will not be an expert on the chances of
someone being killed by a particular load falling from a particular height.
• Probability and statistics do not feature in law training, with the effect
that most lawyers are more comfortable to let the judge ‘stick a finger in
the air’ and determine that a risk is ‘Low’, ‘Medium’ or ‘High’ than to trawl
through relevant statistics and deal with complex expert calculations on
probabilities.
• This expert evidence will only be considered if you lose at trial or plead
guilty – so it could prove to be unnecessary.

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Conclusion
The message from this Court of Appeal case is clear. A good health and
safety defence lawyer needs to engage with the probabilities and statistics
that underlie ‘likelihood of harm’ and ‘seriousness of harm risked’ and in
appropriate cases instruct a suitable expert witness on these issues. The
extra work will often yield a dividend if the jury decides to convict; but will
also be fruitful in the process of negotiating a suitable basis for a guilty plea
(or in the hearing before a judge if the basis of plea cannot be agreed with
the prosecution).

‘Corners cut’ in rail worker crush case

London Underground Limited and Balfour Beatty Rail Limited were fined
£100,000 and £333,000 respectively, after pleading guilty to breaches that
led to a worker suffering life-changing injuries.

In the early hours of 4 June 2016, Mr Adrian Rascarache, 36, was struck by a
Road Rail Vehicle (RRV), and his lower body was crushed between the RRV
and the platform edge of Whitechapel station, resulting in serious injuries to
his pelvis.

Vulnerable patient fatally injured

A healthcare company was fined after a vulnerable patient suffered fatal
injuries during a minibus journey. On 16 March 2014, Samantha Barton was
returning from an out of hours GP appointment at Nottingham Emergency
Medical Centre in a minibus. Samantha died after opening a door and
leaping from the minibus which was travelling at speed on the A52, just
outside of Nottingham. Elysium Healthcare (Farndon) Limited pleaded guilty
to breaching Section 3(1) of the Health and Safety at Work etc. Act and was
later fined £500,000 with costs of £67,500.

Council fined after member of public contracted

Legionnaires’ Disease
Tendring District Council was fined after a member of public contracted
Legionnaires’ Disease following regular use of its leisure centre facilities.
The local authority pleaded guilty to breaching Section 3(1) of the Health and
Safety at Work Act 1974 and was fined £27,000 with costs of £ 7,500.

£2.3m fine in bus crash case

A bus company that ignored warnings about a driver who crashed into a
supermarket, killing two people, has been fined £2.3m. Midland Red (South) Ltd
admitted health and safety breaches after Kailash Chander, now 80, accelerated
into a Sainsbury's store in Coventry in 2015. The bus company admitted failings
including allowing Chander to work in excess of 70-hours a week and allowing
him to continue working despite warnings about his driving.

Hotel owner jailed for fire safety failures

The owner of a hotel was given a prison sentence and ordered to pay
£20,000 in costs for an array of fire safety breaches at his Nottingham
hotel. Mahmood Hussain pleaded guilty at Nottingham Crown Court to five
offences relating to his premises in Nottingham. The breaches under the
Regulatory Reform (Fire Safety) Order 2005 included failure to comply with
an enforcement notice at his site.

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Network Rail fined £200k

Network Rail has been fined £200,000 with £86,000 costs after being found
guilty of one offence under the Health and Safety at Work etc Act 1974.
The Office of Rail and Road’s (ORR) investigation into the incident revealed
that Network Rail’s risk assessment was inadequate and that, despite the
foreseeable risk of a driver failing to see that the gates were being closed,
Network Rail had done little to protect its employees.

Bakery workers exposed to flour dust ‘for years’

Scarborough bakery Cooplands was fined £159,080 and ordered to pay
£4,594 in costs after exposing employees at its Eastfield factory to health
risks over a period of 14 years. The HSE found there was no effective
method of control to prevent flour dust becoming airborne and employees
being exposed to breathing in the dust. Coopland and Son (Scarborough) Ltd
pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc
Act 1974.

Topshop fine: £450k for girl’s skull fracture

The owner of Topshop was fined £450,000 after a 10-year-old girl was
seriously injured by a badly-installed queue barrier in a store. The child
suffered a fractured skull when the barrier toppled onto her at the shop
in Glasgow's Silverburn shopping centre in February 2017. She had been
swinging on the barrier, but a court heard it should have been firmly attached
to the floor. Arcadia Group Ltd, a multinational retail company, pled guilty
to a contravention of Sections 3(1) and Section 33(1)(a) of the Health and
Safety at Work etc Act 1974.

Veolia fined £1m after reversing vehicle death

The refuse collection company was fined £1m after a worker was run over
and killed. Veolia ES (UK) Limited’s employee Mr John Head suffered fatal
injuries when he was run over by a reversing refuse collection vehicle (RCV)
whilst he was walking across the yard, at the Ross Depot Waste Transfer
Station in Folkestone. He was pronounced dead at the scene. The HSE’s
investigation found that multiple vehicles, including RCVs and articulated
lorries, were manoeuvring around the yard with no specific controls. Veolia
ES (UK) Limited was found guilty after a trial of breaching Section 2(1) of the
Health and Safety at Work etc Act 1974. The company was fined £1 million
and ordered to pay costs of £130,000.

Multiple failings at chemicals firm

A chemical manufacturing company was fined after failing to manage
the risk of exposure to chemicals harmful to health, resulting in workers
being exposed to chemicals which caused long term damage to their skin.
Employees working with chemicals at Fine Organics Ltd (now trading as
Lianhetec), Seals Sands, Teesside, were regularly exposed to the chemicals,
which can cause sensitisation of the skin, from October 2013 to December
2016. Workers suffered rashes and in some cases were unable to continue
working at the site. Fine Organics Ltd, of Seals Sands, Teesside, pleaded
guilty to breaching 2(1) of the Health and Safety at Work etc Act 1974 and
was fined £224,000 with costs of £17,098.

Visit SHP Online to keep up to date on the latest health and safety fines and
prosecutions.

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Section 2: Looking Forward

Drone Safety
This new legislation extends the ‘no-fly’ zone around airports, banning
drones from flying within 5km of runways. This is an increase from 1km.
The new exclusion zone is increased by several kilometres. The enlarged
zone will better protect the UK’s airports from those misusing drones, it
came into force on 13 March 2019.

Police officers will be granted new powers to deal with drone pilots who
break the law, while the government is to conduct trials of anti-drone
technology. Penalties for breaking the law on misusing drones range
from fines to life imprisonment if the device is intentionally used to cause
violence. From 30 November 2019, drone operators using drones weighing
250g or more will have to register their device with the Civil Aviation
Authority (CAA) and take an online safety test. Anyone who fails to register
or sit the competency tests could face fines of up to £1,000.

“The disruption caused by drones to flights at Gatwick airport was deliberate,

irresponsible and calculated, as well as illegal,” Transport Secretary Chris
Grayling told parliament as he announced the measures. The government is
also assessing feedback from the aviation and drone industries as part of a
consultation on the future of drone technology and regulation in the UK.

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Gatwick Airport spent £5m on anti-drone tech after

Christmas chaos cost £20m-plus in lost revenue.
It’s almost certain this sum was dwarfed by revenue lost by the airport
and airlines as a result of flights cancelled over safety fears. The cost
The disruption
of the chaos, which led to the cancellation of more than 1,000 flights, is
expected to run into tens of millions of pounds. A spokesman for the airport
caused by drones
suggested a figure of at least £20m. to flights at
Aside from the critical priority of protecting passengers, some observers Gatwick airport
may wonder whether the economics of investing in anti-drone tech were a
no-brainer given the costs associated with cancelling flights or shutting the was deliberate,
airport down. Several trials of anti-drone technologies have been run or are
underway around the world. In May 2018, for instance, London Southend irresponsible and
Airport successfully tested an anti-drone system that combines radio
frequency and optical sensors to detect drones.
calculated, as well
The threat wasn’t merely theoretical. There were already 117 near misses
as illegal.
between manned aircraft and drones in 2018. Gatwick Airport itself closed for
around 20 minutes in 2017 amid concern that drone pilots were trying to film
close encounters with aircraft.

In a separate incident last summer, a drone ‘put 130 lives at risk’ after nearly
hitting an aircraft approaching the airport. Of its investment in counter-drone
technology, first revealed by the Times, Gatwick said it had “equipped itself
for the same level as was supplied by the armed forces originally”. Heathrow
Airport, the only UK airport busier than Gatwick, has also acquired new
technology to combat rogue drones in the wake of the chaos at Gatwick,
which disrupted flights across three days. Other international airports have
been alarmed by the incident and have been consulting Gatwick about how to
upgrade their own defences.

Health and Safety (Amendment) (EU Exit)

Regulations 2018
These Regulations come into force on exit day. These regulations ensure
that EU-derived health and safety protections will continue to be available in
domestic law after the UK has left the EU.

Ionising Radiation (Basic Safety

Standards) (Miscellaneous Provisions)
(Amendment) (EU Exit) Regulations 2018
These Regulations come into force on exit day. This instrument intends to
address deficiencies in the operation of retained European Union (“EU”) law as
provided for by the European Union (Withdrawal) Act 2018. Specifically, this
instrument is intended to remedy two deficiencies in the Ionising Radiation
(Basic Safety Standards) (Miscellaneous Provisions) Regulations 2018 (IRR
(BSSD) 2018). These arise due to cross references to provisions in the Euro-
pean Council Directive 2013/59/Euratom, commonly referred to as the Basic
Safety Standards Directive (“the Directive”) which will no longer be operable
upon the United Kingdom’s withdrawal from the EU. The United Kingdom is
leaving the Euratom Treaty on the same date as it is leaving the EU.

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This instrument makes amendments to address two deficiencies in the IRR

(BSSD) 2018 which would otherwise form part of EU retained law. These
amendments are intended to ensure that these regulations continue to re-
main operable after the United Kingdom’s withdrawal from the EU.
In the event that
Government unveils ‘no-deal Brexit’ UKCA a UK Mark is
safety markings required, it will be
The Government has unveiled a new safety symbol, which could replace the
existing CE marking in the event of Britain leaving the EU without a deal. underpinned by
According to ministers, the rules around using the new UKCA (UK Conformity
Assessed) symbol will mirror those which currently apply for the application the same British
of the CE mark. The CE symbol is currently used on toys, machinery and
electrical equipment to show that they are compliant with EU regulatory Standards as
requirements.
current legislation.
According to the new guidance, the ‘majority of cases’ will be able to use the
CE marking to demonstrate compliance and to sell products on the UK mar-
ket after exit day. But the guidance also states that the new UKCA marking
will not be recognised on the EU market, and products currently requiring a
CE marking will continue to require a CE marking for sale in the EU.

If products require third party assessment of conformity, and if this has been
carried out by a UK conformity assessment body, then it adds manufacturers
will have to apply the new UKCA marking after exit day. This will not be the
case if the certificate of conformity has been transferred to an EU-recog-
nised body, in which case the CE marking would apply.

Guidance welcomed
A spokesman for the British Standards Institution (BSI) said it welcomed
the guidance and will continue to work with the government as negotiations
progress. “In the event that a UK Mark is required, it will be underpinned by
the same British Standards as current legislation,” added the spokesman.

“Regardless of the outcome of Brexit, our membership of international and

European standards organisations will ensure British industry, consumers
and other stakeholders continue to be represented. We have been a leading
nation in the development of standards for over a century and will continue
to work closely with other countries to deliver better business practices and
safer products to consumers.”

Problems and complexity

Arco’s Director of QSHE UK & Asia, Neil Hewitt, said the new marking will cre-
ate additional problems and complexity for UK industry and increase costs
within the global supply chain. “As an organisation we believe Brexit does af-
ford us the opportunity to review the health and safety regulations, as there
are known issues with the CE Mark process, however, we believe improving
current frameworks is a far more beneficial way to tackle compliance than
creating our own marking system,” said Mr Hewitt.

“The Government has already confirmed that the UKCA mark will not be
recognised on the EU market meaning products currently needing a CE mark
will have to maintain this approval for sales in the EU. This will increase
certification and potentially manufacturing costs as products sold in both
markets will need to be conformity assessed for both the CE mark via an EU
notified body and the new UKCA mark via a UK notified body.

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“Overall, I believe this new marking system will create avoidable issues
to both UK and worldwide manufacturers and importers and I would
recommend the government obtains industry consultation on how to
introduce it to minimise disruption.”

Safety, Health and Welfare at Work

(Diving) Regulations 2018 (Ireland)
The Safety, Health and Welfare at Work (Diving) Regulations 2018 come into
force in the Republic of Ireland (only) on 1 May 2019. These regulations are
being introduced to protect the safety of employees involved in carrying out
diving operations in the course of their employment.

They set out a clear framework of responsibilities and specify duty holders
such as clients, diving supervisor, diving contractor, divers and other persons
engaged in the diving project and their duties. These Regulations expand on
and replace the existing legislation and now apply to any diving project in
which a person who dives is at work, they also revoke the Safety in Industry
(Diving Operations) Regulations, 1981 (SI No 422 of 1981).

Compliance in the spotlight for transport

operators
Sarah Valentine, a Senior Associate at Eversheds Sutherland, reviews the
obligation on road transport operators to notify the Office of the Traffic
Commissioner (OTC) of any changes or events which may affect repute. She
also considers the measures businesses should take to ensure compliance
with their licence undertakings.
Sarah Valentine
In the last 12 months we have seen an increase in the number of public SENIOR ASSOCIATE AT
inquiries (810) and driver conduct hearings (3,290) held by the OTC. In 2017 EVERSHEDS SUTHERLAND
the OTC revoked 261 operator licences, curtailed or imposed conditions
on 203 licences and issued 211 formal warnings. With only 93 cases of no
further action recorded it is important operators fulfil their undertakings
to avoid the risk of an OTC ‘root to branch’ investigation of the company’s
approach to risk-management and accountability.

The OTC’s regulatory regime enables inquiries and driver-conduct hearings

to take place many months before commencement of any criminal
proceedings. In the case of the Bath tipper crash in February 2015, the OTC
revoked the operator’s licence within eight months preventing the business Hear from Sarah at
from operating. This highlights that OTC’s inquiries in the midst of an Safety & Health Expo,
incident should not be treated as a peripheral issue, as any adverse decision 18-20 June at ExCeL London.
could cease the operation of a business.
Her session, 'Workshop and mock
When should you notify the OTC of any changes?
trial: What to do in the first 48 hours
There are various reasons and changes that all businesses holding an of a serious workplace incident',
operator’s licence must report to the OTC, some may surprise you whilst takes place 12:30-14:00
others are common knowledge. The legislation for goods and passenger on June 18th at
operators does not set out a definitive or exhaustive list of each and every the Networking Forum.
item or event that must be reported to the OTC.

However, one of the many undertakings an operator must adhere to is to GET YOUR FREE
inform the OTC of all notifiable offences and convictions of the company,
directors, employees and agents. The VOSA ‘Goods Vehicle Operator
TICKET NOW

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Licencing Guide – for Operators’ explains what relevant convictions and

penalties must be declared. This assists operators to know what offences
and penalties need to be reported.

However, the OTC’s directive on ‘Good Repute and Fitness’ refers to other
events that the OTC expect to be informed of as matters which may have
a serious impact on repute. These include recurring civil penalties and
breaches of other enforcement regimes where strict liability offences and
other enforcement action may result. The additional offences are listed
at paragraph 60 of the statutory guidance and include any transport
related convictions, workplace health and safety incidents, convictions
for environmental offences and serious driving offences committed by
employees who hold vocational licences.

The OTC expects to be notified of matters beyond more obvious things such
as criminal court convictions and criminal fixed penalties. The guidance also
includes any formal enforcement notices issued by the Health and Safety
Executive (either improvement notices or prohibition notices). It does not
extend to notification of contraventions or fees for intervention matters.
For this reason operators should be alert to the fact that the ambit of the
reporting requirement is much wider. If there are encounters with other
government agencies then it needs to be borne in mind that they also may
need to be notified to the OTC.

Road transport operators must ensure that a notification of any of the

offences listed above is submitted to the OTC within 28 days. There is
no prescribed form to complete. Care should be taken when submitting
this information to the OTC to ensure documentation to support any
learning outcomes or remedial measures is also provided. A copy of
this documentation should also be sent to the DVSA Area Manager. It
is important for businesses in this situation to demonstrate that a full
investigation has been completed and where appropriate policies revised
and refresher training or disciplinaries undertaken.

Following review of this information the OTC may record the enforcement
action against the licence or schedule an inquiry to review the
circumstances of the offence. In order to avoid the latter it is advisable for
businesses to demonstrate to the OTC that they have reacted appropriately
within the timescales required, and that as an operator the business is
fulfilling their due diligence in regards to their undertaking.

This due diligence exercise extends to monitoring all individuals with a

vocational licence. The importance of these reviews was highlighted by the
Court following the multiple incident which occurred on the M1 in August
2017. In this case a professional driver had failed to notify his employer
that his licence had been revoked 37 days before the incident. The OTC did
not take any action against the operator as it was able to demonstrate that
regular licence reviews were being undertaken.

Finally, in the last 12 months we have also seen an increase in the number
of OTC inquiries and revocations in cases where there has been a historic
failure to notify the OTC of any changes to the role of transport manager.
Operators are reminded that the OTC must be notified of any changes in the
removal, replacement or addition of a transport manager within a business.
The same notification period of 28 days applies.

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Section 3: Environment
Air Quality (Miscellaneous Amendment
and Revocation of Retained Direct EU
Legislation) (EU Exit) Regulations 2018
These Regulations amend various pieces of retained EU legislation in
relation to air quality. This is to enable the legislation to operate effectively
once the UK leaves the EU. They come into force on exit day.

The changes in this instrument include necessary fixes such as: amending
cross references to EU legislation; amending references to the EU, EU
institutions and EU administrative processes to domestic equivalents;
updating legal references to refer to relevant domestic legislation; and
adjusting the requirements for government reporting as is appropriate.

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Climate Change Agreements (Amendment

of Agreements) (EU Exit) Regulations 2018
The Climate Change Agreements (Amendment of Agreements) (EU Exit)
Regulations 2018 (the Regulations) set out a series of changes to be made
to all climate change agreements. They address references to the European
Union Emissions Trading Scheme (EU ETS) and European guidance which,
due to the UK’s withdrawal from the EU, will make the agreements ineffective
if not amended.

The Regulations make amendments to climate change agreements (CCAs),

substituting references to relevant UK legislation in place of the EU ETS
directive from the date of the UK’s exit from the EU. The CCA scheme allows
a lower rate of climate change levy to be charged on supplies of energy to
UK facilities covered by an agreement.

The regulations ensure that it is the Greenhouse Gas Emissions Trading

Scheme Regulations, SI 2012/3038, with which UK facilities must comply to
be certified as covered by a CCA after the UK has left the EU. The regulations
also update references to the latest version of European Commission
guidelines on state aid for rescuing and restructuring non-financial
undertakings in difficulty.

Draft REACH etc. (Amendment etc.)

(EU Exit) Regulations 2019
These draft Regulations would come into force on exit day. They correct
deficiencies in retained EU law relating to the registration, evaluation,
authorisation and restriction of chemicals. The instrument ensures that the
EU legislation will operate effectively after the UK leaves the EU.

These proposed Regulations make various amendments to Regulation (EC)

1907/2006 on the Registration, Evaluation, Authorisation and Restriction of
Chemicals (REACH) and establishing a European Chemicals Agency (ECHA),
which currently governs chemical regulation within the European Union.
The new UK REACH system will be similar to the European system under
the REACH Regulation, mirroring the key principle of no data, no market for
chemicals.

When these Regulations are brought into force the aim is that REACH
provisions can work effectively within the UK to provide a UK system
of chemicals regulation. The functions undertaken by the ECHA under
Regulation (EC) 1907/2006 would be transferred to domestic bodies,
predominantly the Health and Safety Executive (HSE), who already have
some functions under REACH as the UK's competent authority.

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Environmental Protection (Miscellaneous

Amendments) (England and Wales)
Regulations 2018
These Regulations make amendments to the Environmental Protection
Act 1990 (the EPA) and the Environmental Permitting (England and Wales)
Regulations 2016, S.I. 2016/1154 (the EP Regulations).

The amendments that affect the EP Regulations come into force on 7 April
2019. The EP Regulations amendments aim to strengthen the assessment
and enforcement of operator competence and require the operator to
periodically supply the regulator information which demonstrates that the
operator complies with recognised competence standards.

The Clean Air Strategy 2019

The government’s Clean Air Strategy sets out the government’s plans for
dealing with all sources of air pollution. It details comprehensive actions to
improve air quality, addressing how government will:

• Protect the nation’s health

• Protect the environment
• Secure clean growth and innovation
• Reduce emissions from transport, homes, farming and industry
• Monitor progress

New legislation will create a stronger and more coherent framework for
action to tackle air pollution. New England-wide powers to control major
sources of air pollution, in line with the risk they pose to public health and
the environment, plus new local powers to take action in areas with an air
pollution problem will be introduced. These will support the creation of Clean
Air Zones to lower emissions from all sources of air pollution, backed up with
clear enforcement mechanisms.

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Section 4: Energy
Energy and Carbon Reporting
The CRC Energy Efficiency Scheme (CRC) is being abolished from the end
of March 2019. Organisations will report under the CRC for the last time by
the end of July 2019 and surrender allowances for emissions from energy
supplied in the 2018-19 compliance year by the end of October 2019.

The CRC Energy Efficiency Scheme (Revocation and Savings) Order 2018
came into effect in October 2018, making provision for the early closure of
the CRC Energy Efficiency Scheme (the CRC Scheme).

The UK government has introduced a simplified business energy and carbon

reporting framework, partly to replace the carbon reporting requirements of
the CRC.

The Companies (Directors’ Report) and Limited Liability Partnerships (Energy

and Carbon Report) Regulations 2018 (the 2018 Regulations) implement the
government’s policy on Streamlined Energy and Carbon Reporting (SECR).

Under changes introduced by the 2018 Regulations, large unquoted

companies and large LLPs (see below) are obliged to report their UK energy

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use and associated greenhouse gas emissions as a minimum relating

to gas, electricity and transport fuel, as well as an intensity ratio and
information relating to energy efficiency action, through their annual reports.

SECR purpose is to simplify carbon and energy reporting requirements for

companies, at the same time as ensuring that they have the information they
need to act to reduce emissions and energy costs.

It is due to come into effect from 1 April 2019 with the first public
disclosures likely to emerge around springtime of 2020 to allow companies
a full year to collect the required data. The SECR framework will apply to
an estimated 11,900 companies across the UK, which compares to around
4,000 businesses that responded to CRC Energy Efficiency Scheme. The
requirements affect:

• All UK incorporated companies listed on

• The main market of the London Stock Exchange
• A European Economic Area market
• Or whose shares are dealing on the New York Stock Exchange or NASDAQ
• Unquoted large companies incorporated in the UK, which are required to
prepare a Directors’ Report under Part 15 of the Companies Act 2006
• Large Limited Liability Partnerships (large is defined as per the existing
framework for annual accounts and reports, based on sections 465 and
466 of the Companies Act)

The government encourages all other companies to report similarly, although

this remains voluntary. Government guidance is available.

ISO 50001:2018 Energy Management

Standard
The second edition of this standard, published in 2018, aims to help
establish the systems and processes needed to continually improve
energy performance – including energy efficiency, energy use, and energy
consumption. This revision incorporates ISO’s new ‘high-level structure
(HLS)’ of terms, definitions and headings, thus bringing the 2018 standard
into line with the other key management systems standards.

Key changes made by this revision included:

• A stronger emphasis on the responsibility of leadership

• Clarification of key concepts related to energy performance
• Improved sections on data collection and normalization
• Additional minor revisions reflecting seven years of using the standard in
the real world

Energy Savings Opportunity Scheme –

Phase 2
The Energy Savings Opportunity Scheme (ESOS) requires more than 7,000
large enterprises in the UK to undertake energy audits across their sites
incorporating a minimum of 90% of the total energy use of the organisation.
ESOS is a mandatory energy assessment scheme for organisations in the
UK that meet the qualification criteria.

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ESOS applies to large UK undertakings and their corporate groups. It

mainly affects businesses but can also apply to not-for-profit bodies and
any other non-public sector undertakings that are large enough to meet the
qualification criteria.

An organisation qualifies for the second compliance period if, on

31 December 2018, it met the ESOS definition of a large undertaking.
Organisations that meet the following criteria are required to comply:

• Have 250 employees or more; OR

• An annual turnover exceeding €50 million AND an annual balance sheet
total exceeding €43 million.

Organisations that qualify for ESOS must carry out energy efficiency audits
every four years.

Energy Efficiency Audits for Phase 2 must be completed by

5 December 2019.

ESOS is separate to the new streamlined energy and carbon reporting

(SECR) framework.

Government advice suggests that systems in place to collect and audit

energy use to meet ESOS obligations and progress with implementation
of ESOS recommendations can help organisations to meet their SECR
requirements.

If you have an ISO 50001 energy management system that is certified by an

accredited certification body and covers all your energy use (for the whole
corporate group in the UK), this counts as your ESOS assessment.

Resources
• SHP Online • The Healthy Work Company
• Barbour EHS • Mental Health First Aid (MHFA)
• IFSEC Global • SOCOTEC
• Cortexica • Turnstone Law
• Eversheds Sutherland

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