Transcript Health and Safety Presentation to ING Real Estate

ARHM – Winter Seminar
28 November 2013
Health and Safety Update and Dos
and Don’ts
Esme Saynor and Rebecca Roffe – 28 November 2013
Overview
• General Health and Safety Update
– The Health and Safety at Work Act
– Assessing the risk
– Working with contractors
• Health and Safety in Property Management
– Safety of non-employees generally
– Asbestos
– Fire Safety
• General news
• Questions
GENERAL HEALTH AND
SAFETY UPDATE
Regulatory Context
• Penalties for breaches of health and safety legislation are
increasing steadily with the current record fine for a single
offence being £15m imposed on Transco for breach of S.3
HSWA 1974.
• Shell Plc was fined almost £1m following an accident, even
though nobody was injured.
• Even if prosecutions do not ensue, simply being investigated
can cause a drop in an organisation’s morale.
• Having a good health and safety record can help if something
bad does happen.
Health and Safety at Work Act 1974
– The Relevant Duties
• Section 2: Employers duties to employees
• Section 3: Employers duties to non-employees
• Section 4: Duties to non-employees in respect of premises
• Section 37: Offences by bodies corporate – ‘consent,
connivance, neglect’
Embedding safety principles within a
business
• Set the right ‘tone at the top’
• HSE Guidance entitled ‘Leading Health and Safety at Work’ was
originally published in 2007 in consultation with the institute of
directors.
• Sets three ‘essential principles’ that underpin good health and
safety performance:
– Strong and active leadership
– Worker involvement and engagement
– Assessment and review
Employer Responsibilities
• s.2(1) “It shall be the duty of every employer to ensure, so far
as it is reasonably practicable, the health, safety and welfare
at work of all his employees”.
• s.3 “It shall be the duty of every employer to conduct his
undertaking in such a way as to ensure, SFAIRP, that persons
not in his employment who may be affected thereby are not
exposed to risks to their health or safety”.
– Contractors
– Residents
– Members of emergency services, neighbours, passers by
and the public at large
What is risk?
•
“Risk is a different word from the word danger and it has a different
meaning. It means, in the circumstances of this case, a possible
source of danger”.
– R v Board of Trustees of the Science Museum [1993]
•
The risk must be material, not fanciful or trivial
– The Queen v Chargot Ltd [2007]
•
Whether a risk is material is down to the jury to decide
– Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R [2011]
•
Imposes a duty on employers to think deliberately about things which
are not obvious
What to assess?
• The duty to assess risk extends to:
– Risks to young persons (18 years or below)
– New or expectant mothers (within 6 months of giving birth)
– Lone workers or those working overseas
– Disabled people
– Inexperienced workers
• Risk reviews relate to the extent and nature of the risks involved
and the likelihood of creeping changes (as opposed to a major
change which would automatically justify a review)
Risk Assessment – Dos and Don’ts
•
The Health and Safety Executive – HSE – provide 5 steps to
effective risk assessment:
1. Identify hazards
2. Assess the risks
- Who might be harmed and how?
3. Eliminate or reduce the risks
- Are existing precautions adequate or should more be
done?
- SFAIRP
4. Document all findings and actions taken
5. Undertake ongoing evaluation
- Review your assessment every year or if there are any
changes to equipment, substances or procedures.
Revise if necessary
Penalties for breach of HSWA
• Health and Safety (Offences) Act 2008 increased penalties
– Magistrates: £20,000 maximum fine
– Crown Court: Unlimited fine
– Some imprisonable offences
– Disqualification orders
– Costs orders
Employer Responsibility under the HSWA
– General Dos and Don’ts
• DO have effective health and safety management systems
– Risk assessment, systems of work, written policies and
procedures
– Roles and responsibility defined and understood
– Provide information and training for employees & contractors
– Provide the right workplace facilities
• DON’T forget to
– Communicate the policies and procedures effectively
– Review and update policies and procedures, monitoring and
compliance
– Keep records of training, compliance assessments and risk
assessments
– Review emergency procedures regularly
Individual Liability
• s.37 Health and Safety at Work Act 1974
• “Where an offence committed by a body corporate is proved to
have been committed:
– with the consent or connivance of; or
– as attributable to any neglect on the part of;
• any director, manager, secretary or other similar officer of the
body corporate, he as well as the body corporate shall be guilty
of that offence”.
Scope of s.37 duty
• What is connivance?
– Doesn’t amount to actual consent to the offence but a failure to take
any steps to prevent or discourage it i.e. ‘wilful blindness’.
• What is consent?
– Must have known the material facts which constituted the offence
and agreed to its conduct (R v Chargot [2007]).
• What is neglect?
– Ask whether the accused failed to take steps to prevent an offence
by the company and the taking of those steps fell within the scope
of his duties.
• Who is a manager?
– A manager is someone who is responsible for deciding corporate
strategy and policy. (R v Boal [1992])
Corporate manslaughter
• Corporate Manslaughter and Corporate Homicide Act 2007
S.1
• “An organisation to which this section applies is guilty of an
offence if the way in which its activities are managed or
organised:
– cause a persons death, and
– amounts to a gross breach of a relevant duty of care it owed
to the victim”.
Gross Breach
• “A breach of a duty of care by an organisation is a gross breach
if the conduct alleged amounting to a breach of that duty falls far
below what can reasonably be expected of the organisation in
the circumstances”.
• Jury to decide by considering a list of factors
Factors for the jury to consider
• The jury must take into account
– Whether the organisation failed to comply with health and
safety legislation
– How serious that failure was
– How much of a risk of death it posed
• The jury may take into account
– Any attitudes, policies, systems or accepted practices in the
organisation that were likely to have encouraged a
management failure or to have produced tolerance of it.
– Any health and safety guidance that relates to the alleged
breach
– Training of employees, adequacy of equipment
Penalties
• Corporate Manslaughter and Corporate Homicide Act 2007
– Unlimited fine
– Publicity order
– Remediation order
– Compensation order
– Prosecution costs order
– Victim surcharge
R v Cotswold Geotechnical Holdings Ltd
[2011]
– First successful prosecution of a company under the
Corporate Manslaughter and Corporate Homicide Act 2007
– Concerned the death of a young, unsupervised employee
– Company fined £385,000, the equivalent of 250% of its
turnover
– On dismissing an appeal against the fine, the judge said
that it was unfortunate but ‘unavoidable and inevitable’ that
the company would probably have to go into liquidation to
pay the fine
Managing Contractors and
Outsourcing
• Need to satisfy self that contractors are competent, that they have sufficient
skills and knowledge to do the job safely and without risks to health and safety.
• Great importance in choosing a competent team and working safely and
efficiently together.
• The level of risk will depend on the nature of the job.
• Whatever the risk, need to consider the health and safety implications of the job
you want done.
• This will involve:
– Selecting someone suitable to do the job
– Assessing the risks
– Deciding what information, instruction and training is required
– How co-operation and co-ordination between all parties is achieved
– How the workforce is to be consulted
– The level of management and supervision required
How can you manage the risk in
contracting?
• DO
– Give credit in tenders for levels of risk management and
ethical policies
– Consider having an overall policy to only contract with third
parties who meet minimum standards
– Check for ISO accreditation or use of international
regulations
• DON’T
– Use third parties who are not undertaking appropriate
training
HEALTH AND SAFETY ISSUES
IN PROPERTY MANAGEMENT
Control
• s.4 Health and Safety at Work Act 1974
– Where a person has, by virtue of a contract or tenancy, an obligation of
any extent in relation to maintenance or repair to premises or access, that
person will have control.
– Such persons must provide for the safety of non-employees who come into
contact with the premises.
• More than one person may have control over premises: Austin Rover Group Ltd
v HM Inspector of Factories [1990]
• Therefore it is important to identify who has control in the contract by identifying
who has the repairing obligation.
• Especially important in landlord-tenant relationships
– A full FRI lease should put the repairing and maintenance obligations on to
the tenant.
Asbestos
• Under the general health and safety regime, employers and property owners
have duties to protect people from exposure to asbestos fibres
• There is also a specific legal duty to manage asbestos under the Control of
Asbestos Regulations 2012, Regulation 4.
• Which buildings are affected?
– All non-domestic buildings whatever type of business.
– The common areas of residential rented buildings
• Regulation 4 imposes an obligation on the "dutyholder" to:
– Determine whether asbestos is present in a building or is likely to be
present by carrying out a risk assessment
– Put in place action plans and systems to manage any asbestos that is or is
likely to be present.
The “dutyholder”
• What is the “dutyholder”?
– You are a dutyholder if you own, occupy, manage, or have any contractual
responsibilities for maintenance or repair of non-domestic premises
– Even in the absence of agreement, all parties which control access or
maintenance of a building could still be liable where it can be shown that
asbestos has not been managed.
• It may be that the primary responsibility for maintenance and repair rests with
the tenant, but the freeholder will need to recognise that it may remain a
dutyholder in certain circumstances:
– e.g. Where a freeholder leases the whole of a property, the freeholder may
retain some obligation to maintain or repair the structure/common parts
• There can be multiple dutyholders in any given scenario, although one party is
usually expected to be primarily liable
Fire safety
• Regulatory Reform (Fire Safety) Order 2005
– Applies to all non-domestic premises other than a restricted
number of exceptions.
– Includes vacant buildings
– Includes external areas (car parks, loading bays etc.)
• The ‘responsible person’ has the duties under the Order
• Responsible person means
– The employer, if the workplace is under his control
– Otherwise the duties are extended to any person who has control
of the premises
– The owner, where the person in control of the premises does not
have control in connection with the carrying on by that person of a
trade, business or undertaking
Duties
• To take general fire precautions to ensure, so far as is
reasonably practicable the safety of employees
• In relation to non-employees, to take precautions that may
reasonably be required in the circumstances of the case to
ensure that the premises are safe
• To carry out a risk assessment and keep this under review
• Not only to keep fire exits clear and emergency lighting on!
Regulators' enforcement powers
• Alterations notice
– Served if the enforcing authority believes that the premises constitute a
serious risk if a change is made to premises
– Where a notice has been served the responsible person must notify the
enforcement authority of the proposed changes to the premises and the fire
risk assessment
• Enforcement notice
– Served if responsible person has not, in the opinion of the enforcing
authority, complied with any provision of the order
– Will require the responsible person to remedy the failure
• Prohibition notice
– Served if the enforcing authority holds the opinion that the use of the
premises involves or will involve a risk so serious that the use of the
premises ought to be prohibited or restricted
Offences
• It is an offence for a responsible person to fail to comply:
– With requirements, thereby placing one or more persons at risk of
death or serious injury in case of fire
– With any requirements of alteration, enforcement or prohibition
notices
– In relation to the provision of luminous tube signs (Regulatory
Reform (Fire Safety) Order 2005 art.37)
• A person found guilty of one of these offences will be liable
– On summary conviction to a fine not exceeding the statutory
maximum; or
– On conviction on indictment to a fine or to imprisonment for a
maximum of 2 years
London Fire and Emergency Planning
Authority v New Look Retailers Ltd (2010)
• A fire broke out on the second floor of New Look’s Oxford Street store
resulting in 400 people being evacuated.
• The cause of the fire was unknown and there was no evidence that it
was due to the negligence of New Look
• However, the court imposed a fine of £250,000 for not having an
adequate risk assessment and £150,000 for inadequate safety training
(plus costs)
• The case highlights the fact that there is now great scope for the courts
to punish for a potential outcome of a fire
Health and Safety for Property
Management – Dos and Don’ts
• DO
– Ensure risk assessments are conducted and reviewed by
appropriately qualified members of staff
– Put in place clear lines of reporting and monitoring of
compliance
– Ensure improvements required to the buildings to keep
them legally-compliant are done in a timely fashion and
adequate records are kept of all works
– Review/update asbestos surveys where required and make
these available to all contractors coming on-site
• DON’T
– Assume the tenant is always liable!
HEALTH AND SAFETY NEWS
Recent updates
• Review of Approved Codes of Practice
• New guidance for leaders on “Managing for Health and Safety”
• Fee for Intervention scheme
QUESTIONS?
The reality of Solving Leaseholder's
problems
Michaela Mason and Paul Pinder – 28 November 2013
How a conveyancing transaction
works
1.
2.
3.
Pre-contract stage
Post-contract (or pre-completion stage)
Post completion stage
Pre-contract stage
•
•
•
•
Title
Searches
Buyer’s finances
Draft contract/lease
Exchange of Contracts
Post Contract and Pre-Completion Stage
•
•
•
•
Draft lease
Buyer’s lender?
Preparation for completion
Mortgage?
Post Completion
• Stamp Duty Land Tax
• Registration at Land Registry
Post-Contract Stage
• Draft lease
• Buyer’s lender
• Preparation for completion
Leases-The Main Elements
•
•
•
•
•
•
•
Premises and Rights
Rent
Service Charge
Insurance
Alterations
Alienation
Landlord’s Obligations
Premises and Rights
• Flat Leases
• House Leases
Rent andService Charge
•
•
•
•
Rent
Payment
Services
Calculation and Payment
Insurance
• Buildings Insurance
• Third Party Liability
Alterations and Alienation
•
•
•
•
•
Lease of part or whole?
General restrictions
- in last years of term
- consent required
- fees
Landlord’s Obligations
•
•
•
•
•
Insurance
Services
Repair of Estate and/or Building
Restrictions on Dealing
Other Leases
POZZO WOOD
MCKELLENSHIRE
DATE; 26/11/13
SCALE; 1:500
SITE & GROUND FLOOR
BECKETT ROAD
POZZO WOOD
MCKELLENSHIRE
DATE; 26/11/13
FIRST FLOOR
SECOND FLOOR
SCALE; 1:500
Questions?
Real Estate Dispute Resolution
Paul Pinder, Senior Associate
Residential leases and disputes
• Claims for rent
• Limits on service charges
• Rights to manage
• Lease extensions
Ground rents
• Section 23(2) Landlord and Tenant Act 1927
• Sections 47 and 48 Landlord and Tenant Act 1987
• Section 166 Commonhold and Leasehold Reform Act 2002
Service charges
• Qualifying long term agreement £100
• Works £250
• Section 20 procedure
Right to manage
• Commonhold and Leasehold Reform Act 2002
• Get together and oust the manager and appoint their own
Lease extensions
• Leasehold Reform, Housing and Urban Development Act 1993
• Right to a new lease with a 90 year extension
Forfeiture
• Sections 167 and 168 Commonhold and Leasehold Reform Act
2002
• Protection from Eviction Act 1977
• Ability to serve a section 146 notice
Nuisance
• Serve a section 146 notice?
• Court route
• Capacity of tenant
Any questions?
When the Inspector Calls
Lukas Rootman - 28 November 2013
• Live issues
Live issues
• Asbestos
• Work at Height
• Corporate Manslaughter
• Workplace transport
• Fire legislation
• Slips/trips
• Noise & Vibration
• Better Backs
• Stress
• Construction
• Legal framework
International Law
EU Law
UK Law
Civil
• Negligence
Public
• Nuisance
•Human Rights
• Contract
•Judicial Review
• Competition etc.
•Freedom of
Information
Criminal
• HSW 74
•relevant statutory
instruments
“Legal” Benchmarks
•
Principal
– Acts eg HSWA 1974
– Regulations eg MHSW 1999
– Approved Codes of Practice eg COSHH ACoP
– Guidance eg HSG 65
•
Other
– Industry standards
– In-house
The Regulators – England & Wales
• Health & Safety Executive
• Local Authorities
• Fire and Rescue Services
• (Environment Agency)
The Police
• Protocol regarding deaths at work
• PACE procedures relevant to all regulators
Coroners
• Independent Judicial Officers
• Inquire into deaths
– violent
– unnatural
– sudden and unknown
• Inquest not a trial
• Coroner can report death to the appropriate authority
Coroner’s Inquests
• May be questioned by “Properly Interested Parties”
– insurers
– inspectors
– public
• Juries held where death at work
• Verdicts
– Not determine blame
– Not identify Criminal/Civil Liability
• Investigations
Stages of the investigation
•
•
•
•
•
Prior to the visit
During a visit
During an investigation
Interviews
After a visit
• Stage 1.
• Prior to a visit
Prior to a visit
• Understand what the risk are
– Health & Safety (Injury/harm/damage)
– Business (Commercial, business continuity)
• Know the policies & systems
– Company general
– Site/Local
– [Preparation is vital. First impressions count]
Think why will an inspector call?
•
•
•
•
•
•
•
•
Routine inspection
Response to an incident
Pre-arranged investigative visit
Assessment the risks in new businesses or premises
Target certain geographical areas or sectors
Random ‘spot checks’ on compliance
Keep abreast of new developments and processes
HSE training visit
Why you?
• HSE concentrate where the risks are highest
• Where they will have greatest impact
• Where they have evidence that performance is poor
• You operate in a hazardous industrial sector
• [Do any of these apply to you?]
• Stage 2.
• During a visit
Manage the visit
•
•
•
•
Agree and discuss the purpose of the visit
Always work to & highlight your strengths
Be professional & courteous
Try and plan & agree points of contact
• [But remember…]
Powers of Inspectors*
• Entry at any reasonable time
• Take Constable if necessary
• Authorise others to enter eg gas, electricity
• Examine and make investigations
• * Note: Many more listed under HSW74’ s20.
Relationships
• It suited the last Inspector [But….]
– Regulator free to change its mind
– Need for constant review
– Onus always rests with employer
• HSE is indemnified against all/part of any damages
– act complained of within powers
– duty as Inspector gave entitlement
• Stage 3.
• During an investigation
Access to documentation
• Regulators’ powers
– require production of relevant documents
– privileged documents exempt
– what is privileged?
• Obstruction of Inspector
• Note: House of Lords Decision
•
"legal advice privilege“ and "litigation privilege".
Health warning
• Special care needs to be taken with
– E-mails
– SMS text messaging
– Voice mail
– Consultants reports
– Glib post accident comments
• Every aspect of the accident investigation must be carried out
professionally
• Stage 4.
• During an interview
Interviews/Statements
•
3 types
–
Witness statements
–
Under Section 20 of HSWA 1974
–
Under PACE
•
Human Rights Implications
•
Excluding evidence
Witness statements
• Primary purpose is to gather factual information
– Voluntary under Criminal Justice Act 1967
– First hand details only – no hearsay
– Signed copy given to witness
Section 20 Interviews
•
•
Primary purpose is information gathering
– Compulsory - no right of silence
– Interviewee’s right to have someone present
– Potential offence under Section 33
Protection given under principle of right not to self incriminate
PACE Interviews
• Primary purpose is to gather information as a suspect
(individually/company)
– A caution must be read
– A right of silence exists – however adverse inference may
be drawn
– Legal advice must be taken
• Most H&S offences are not arrestable, so a PACE interview can
be refused. (Always take legal advice before refusing)
Take note
• Check/ask what type of interview it is
• Think about the need for legal advice
• Be aware of conflicts of interest?
• Avoid any suspicion of obstruction.
• Stage 5.
• After a visit
After a visit
•
•
•
•
Always record all contacts & visits by regulator.
All significant issues should be raised with line management
Write up a summary of the visit
Contact the HSE to confirm your understanding of the outcome
of the visit
• If an enforcement is possible, be prepared to request legal
advice
Internal Investigations
Why investigate
• Moral/Economic case
– Not in dispute
• Legal requirements
– General compliance (RIDDOR)
– Arrangements (Plan:organise:control:monitor:review)
• Civil litigation
• Insurance
Basic principles
• Identify causes
– Immediate: Underlying: Root
• Principles of HSE guidance should be followed
– HSG65/HSG245/MHSW99
• Company should adopt a consistent risk based approach
• Line managers must be trained in procedures
Accident reports – the smoking gun
• “We have been playing Russian Roulette…”
• “Accident waiting to happen”
• “We were lucky it wasn’t a much more serious
injury…”
Reports
•Any documentation produced may be used in proceedings and may
have liability implications Therefore, when recording incidents it is
essential that records are:
•
•
•
factual
concise
accurate
•[If the matter being reported is of a serious nature, legal advice on the level of
reporting should be sought]
Access to documentation
• Regulators’ powers
– require production of relevant documents
– privileged documents exempt
– what is privileged?
• Obstruction of Inspector
• Note: Recent House of Lords Decision
•
"legal advice privilege“ and "litigation privilege".
Enforcement & Prosecution
Do Inspectors have to take action?
• Some discretion – enforcement policy
• Code for Crown Prosecutors
• Duty to the public
• Does the Human Rights Act make a difference?
Enforcement options
•
•
•
•
•
•
•
Verbal advice
Written advice
Improvement/Enforcement notice
Prohibition notice/Injunction
Caution
Prosecution
Withdraw/modify licence, authorisation
• Note: Option selected dependent on facts (& politics) of each
case
Key stages of prosecution
•
•
•
•
•
•
•
•
•
•
•
Incident/contact
Investigation
Interviews
Inquest
Summons
Disclosure eg Friskies schedules
Expert investigations
Plea
Negotiations
Court
Sentencing
Aggravating features
• Failure to heed warnings
• Where defendant deliberately flouts legislation for financial
reasons
• Offence results in fatality
• Previous similar offences
Mitigating factors
•
•
•
•
Prompt admission of liability and guilty plea
Steps taken to remedy deficiencies
A good safety record
Ready co-operation
Open Forum
Contact details
LUKAS ROOTMAN
Partner
T +44 (0)114 279 4022
[email protected]
ESME SAYNOR
Associate
T +44 (0)114 279 4245
[email protected]
REBECCA ROFFE
Associate
T +44 (0)114 279 4040
[email protected]