The Sentencing Councils Definitive Sentencing Guideline for Health and Safety cases comes into force on 1st February 2016 and applies to all offenders convicted of health and safety offences.
The Guideline will have a dramatic effect on the punishment of health and safety offenders and, in conjunction with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that came into force on 12th March 2015) will lead to huge increases in the level of fines imposed or organisations and individuals.
The Guideline is mandatory for the courts in England and Wales and requires them to properly assess the offender's culpability with the priority being, the harm that was risked, rather than the harm that actually occurred. Additionally the Guideline requires that, when deciding on the appropriate levels of fines in health and safety cases, there has to be a much more detailed analysis of the offender's financial position and resources.
The Courts will be required calculate the level of fine based on the key criteria of level of culpability and organisations turnover. For example where a micro organisation, which is defined and having a turnover of not more than £2,000,000 and whose culpability is adjudged as Low, the starting point for the fine would be £30,000. Whereas if their culpability is adjudged as being High, the starting point for the fine would be £250,000
Previously, fines for health and safety cases dealt with at the Magistrates' Court were limited, often, to a statutory maximum of £5,000, or a higher amount, if so provided for in the applicable legislation.
For example, health and safety offences under the Health and Safety at Work Act 1974 were capped at £20,000, while the cap for environmental offences varied between £5,000 and £50,000 depending upon the nature of the offence. There is now no cap on the level of fines, which can be imposed by Magistrates for these offences.
The rationale for the legislation is to encourage the greater use of fines in the Magistrates' Courts and, in particular, to enable Magistrates' Courts to impose more proportionate fines on wealthy and corporate offenders.
Fines for health and safety offences in particular have increased at a significant rate in recent years. The relaxation of the restrictions on the fining powers of Magistrates' Courts and new guidelines on sentencing calculations is very likely to increase this trend still further.
The New Year is with us already, 2016 is up and running and it's a good time to reflect on the success of your safety program during the past year. Was safety a top priority for everyone in your organisation? Did you manage to meet objectives, or do you perhaps need to undertake some new initiatives this year. Here are a few tips to get you started;
Focus on Hazards.
One initiative that you might consider is to turn the spotlight on workplace hazards. For example:
• Take a second look at the layout and condition of work areas.
• Examine tools and equipment to make sure they are safe for employees to use (and review maintenance schedules to make sure they stay that way).
• Observe the way employees work (you might be surprised at how many unsafe behaviours you observe).
• Check to make sure that appropriate personal protective equipment (in good condition) is readily available to all workers.
• Identify potential fire, chemical, electrical, and other hazards throughout your facility and take action to eliminate these risks.
Encourage Employee Participation.
If employees at all levels in the organisation are actively involved in promoting workplace safety, your safety initiatives for 2016 are much more likely to achieve objectives and improve overall safety.
• Encourage employees to make suggestions about how to improve workplace safety (and then be sure to give their suggestions serious consideration!).
• Involve employees in problem solving when challenging safety and health issues arise.
• Rely on safety committees composed of employees from all levels and functions to identify hazards, investigate accidents, and promote safe work habits among your workforce.
Employee training is probably the most important aspect of any successful safety program.
• Check H.S.E standards for training requirements, many Regulations have very specific requirements for training and levels of competence.
• Make sure training sessions are interactive and provide plenty of opportunities for questions and discussion.
• Take advantage of available technology to enhance and expand training options.
• Provide lots of demonstrations and hands-on experience during training sessions.
• Don't forget to provide training for supervisors and managers, too (especially when new regulations, policies, equipment, processes, etc., are introduced).
Recognise and Reward Safe Behaviour
Never forget to show your gratitude for the efforts employees, supervisors, and managers are making to create a safer workplace.
• Use recognition and reward programs to reinforce safe behaviour and positive safety attitudes.
• Talk up safety at every opportunity.
• Let employees know that their safety is your top priority this year, and ask them to join you in making it their top priority as well.
Your health and safety initiatives may well be built on a clear understanding on your hazards and risks, you’ve engaged your workforce, identified necessary competences and valued the need to recognise and reward safe behaviour but have you got the resources to carry your initiatives through?
Points to consider;
• Competence – Health and safety is a very broad subject with many specific specialisms, few organisations can claim to have experts for all.
• Availability – New initiatives mean more work at a time when everyone is already very busy with the day job
• Commitment – To be effective your resources will need to be fully committed to your health and safety objectives.
• Organisation – Precious resources can be easily lost without appropriate organisation, reliance on “ its just common sense” won’t do.
If all, or some, of the above are unanswered questions or concerns for your organisation then you’ve achieved a key health and safety objective of knowing where your limitations are.
How We Can Help
Its that time of year again when we like to celebrate Christmas and another successful year by holding the annual company Christmas Party / End of year Event.
Everyone’s going to be there (even the ones who don’t like each other), there’ll be loads of food, drink, dancing, entertainment and a few silly games – what could possible go wrong? …. Well quite a lot really.
Health and safety can sometimes seem like a load of time-consuming red tape – when you’re busy planning an event, it’s easy to lose sight of the importance of proper health and safety planning.
From a risk-management perspective, it’s important not to lose sight of health and safety – what’s the point in carefully planning fun and engaging events if someone is going to become injured or, in a worst-case scenario, killed? Financial ruin and potentially criminal responsibility is neither fun nor engaging!
This health and safety guide will help you understand who you are responsible for under the law and provide some tips on how to make sure you run and safe and fun event!
Who are you responsible for?
You are responsible for the health and safety of:
1. People who work for you
2. Your attendees (whether the public, or invited guests)
It is important to note that “people who work for you” also includes volunteers – payment isn’t a requirement to health and safety.
What do you need to do?
There’s a three step process you should take to tackle health and safety at your event: Plan-Monitor-Review.
During the planning phase, you should first decide who is going to help you with your health and safety duties: Are you going to manage it all yourself, or are you staff going to take on certain responsibilities? Would it be better if someone from outside your organisation handled all health and safety matters, leaving you more time to handle other aspects of your business?
In any instance, it’s important to ensure that the people who are handling particular aspects of your events health and safety are aware of their responsibilities and can be trusted to handle them competently.
Next, you should consider creating a safety plan.
Health and safety has a risk-based approach and what that means is that if you’re running a coconut shy, it will require less detailed health and safety planning than if you’re running a bungee jump. There’s a big difference between a misdirected ball hitting someone on the head and a snapped bungee cord!
When considering your safety plan, should you consider the size of your event, its audience, its location, what kind of activities you’ll be putting on, how long it will last, and the time of year.
You should engage with all stakeholders during this phase, including your event staff, venue owners and managers, your contractors, local authorities and (if appropriate) emergency services. These people will provide valuable input and insight in to the health and safety risk of your event. Contractors should be selected on their ability to deliver a competent and safe service. Your staff should be fully trained to manage the risks associated with their job and how to handle them (are they lifting heavy things, for example? How do they minimise back injury?)
You should develop an emergency plan: Yet again, this will be risk-based and the level of emergency planning put in place should be proportionate to the event. You’re not going to need ambulances standing by for champagne and nibbles, but you would if you’re planning a rally race.
Some emergency risks to consider are fire, injury, bomb threats and natural hazards though there may be others due to locality or risks involved. You should consider what response there will be to each emergency risk – do you need a first aider on site? Will the event need to be evacuated? Where will you evacuate people to? Will the emergency services need to be standing by?
Emergencies are rare, but often have big consequences. Some emergencies tend towards certain activities more than others, but you should consider your risks in light of your activity and plan accordingly.
The important thing to remember here is that you’ve made a plan: Stick to the plan!
During the monitoring phase, you’ve identified all your risk and put in appropriate steps to minimise their impact and ensure that everyone’s going to have a great time.
You’re setting up your event – are your staff setting up in line with agreed health and safety protocols? Are contractors showing that level of care and competence expected?
Your event is now underway, and everything’s going great – or is it?
During the monitoring phase, you, or your appointed individuals, should be feeding back information periodically to ensure consistent health and safety delivery. You should be reporting on how the careful planning you’ve prepared is being delivered and if something does go wrong, handle it according to the plan!
Consider “near-misses” – this is where an accident could have happened, but luckily didn’t. Where, for example, something fell and nearly hit someone. Next time, it could be a miss and it’s important to log near misses as much as actual injury as it will be important in your review stage.
Your event is over: Nobody has died and with the exception of a paper-cut from a particularly sharp raffle ticket, nobody was hurt!
Although you may feel after such a successful event just sitting back and relaxing, it’s important to review and reflect on your event and determines precisely what happened in practice and whether or not there are improvements you can make next time.
This is why near-misses are important – although it may have seemed like a remote possibility in the planning stage, did the reality of your event pose an un-thought-of-risk? If it really was unforeseeable, then nobody can blame you for this, but they can and will if you fail to act on it next time.
Points to remember
1. You’re responsible as event organiser for your staff, your guests, and your contractors.
2. With those people in mind, you should follow a plan-monitor-review approach to your health and safety planning
3. All health and safety is risk-based – the greater the risk, the greater the level of planning and monitoring.
4. You should contingency plan for all plausible issues by engaging with all parties. Local authorities will be helpful in determining local issues.
5. Who is responsible for ensuring delivery and reporting back to you or an appointed individual?
6. You should plan for emergencies and put in place procedures to deal with things when they really go wrong.
7. During your event, you should periodically monitor how your planning is put into practice.
8. Near-misses are just as important to note and deal with as actual injury!
9. After your event, you should review your practices and consider what happened on the day and any near-misses that may have occurred. Use this to plan your next event if appropriate.
10. There are hefty fines for breaches of health and safety – up to £20,000 per breach. From a financial perspective, can you really afford not to follow it?
11. Where an individual is personally responsible for a serious breach, you could even face criminal sanctions. Plan, plan, plan, plan some more, and make sure it’s happening!
Follow the above and ensure you all have a Happy Christmas and New Year!
The Health and Safety Executive are currently consulting on draft proposals for The Control of Electromagnetic Fields at Work Regulations 2016.
The new Regulations are required following the adoption by the European Union of Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields)
These requirements must be transposed and implemented by law across all Member States by 1 July 2016.
What are Electromagnetic Frequencies?
An EMF is a type of non-ionising radiation that is present in virtually all workplaces and is create whenever electrical energy is used.
The types of EMF effects on the body are described as; direct effects on the body and indirect effects caused by the EMF affecting other things in the environment that can create a safety or health hazard.
The mechanism for interaction between the external environmental field and a person changes according to the type of EMF. The type of effect that EMFs have on people depends primarily on the frequency and intensity: some fields cause stimulation of sensory organs, nerves and muscle, while others cause heating.
The effects caused by heating are termed ‘thermal effects’ while all other effects are termed ‘non-thermal’.
Extremely low frequency or pulsed EMFs can create the perception of a flickering effect in the peripheral vision, which are caused by the changing fields interacting with the retina. They are not harmful but may be irritating. The perception disappears when the EMF exposure has ceased.
Importantly, all these effects show a threshold below which there is no risk, and exposures below the threshold are not cumulative i.e. it does not get worse over time through additional exposures.
The established adverse effects of EMFs on the body are:
In addition, while living tissues are largely unaffected by static magnetic fields, movement in strong magnetic fields will induce (extremely low frequency) electric fields in the exposed person which can lead to a metallic taste, or feelings of vertigo or nausea. The latter effects could lead to safety issues, if the affected worker is in a situation where the adverse effects could increase the likelihood of an accident.
There is also risk of electric shock or a burn from touching ungrounded conducting objects in an electromagnetic field.
Not only may the EMFs interact directly with people, but also with objects, which may then present an indirect risk to people making contact with them or in the vicinity.
Potential indirect effects are:
At present, there are no specific regulations covering worker exposure to EMFs in UK domestic health and safety law.
EMF risks are managed through the general requirements in the Management of Health and Safety at Work Regulations 1999 (MHSWR 1999), and supported by a Public Health England recommendation that the International Commission on Non-Ionizing Radiation Protection (ICNIRP) guidelines be followed.
The risks from EMF are generally already well understood and managed in the UK: Health and Safety Executive Inspectors do not come across many instances of workers at risk and there have been very few incidents or accidents reported in recent years as a direct result of exposure from EMF.
A Directive covering worker exposure to electromagnetic fields (EMF) was first adopted by the European Parliament and the Council of Ministers in 2004.
However, following adoption, the manufacturing sector and the medical magnetic resonance imaging (MRI) community (MRI is widely used in medical diagnostics) raised concerns that it contained disproportionate requirements and was overly burdensome. An extension to the transposition deadline to address these concerns was agreed and the 2004 Directive was not transposed into UK law.
Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) was adopted on 26 June 2013. It was published in the European Union (EU) Official Journal on 29 June 2013, and must be transposed and implemented (its requirements brought into law) across all Member States by 1 July 2016.
The EMF Directive lays down minimum requirements for the protection of workers from risks to their health and safety arising, or likely to arise, from exposure to EMF. It covers EMFs with frequencies up to 300 gigahertz (GHz). The Directive requires that dutyholders assess the levels of EMF to which their workers may be exposed against a set of specific thresholds. These are called Action Levels (ALs) and Exposure Limit Values (ELVs). Different frequency ranges have different ALs and ELVs.
Overall the Directive aims to ensure that:
Construction work remains one for the most hazardous occupations and a recent Health and Safety Executive (HSE) initiative has shown that domestic basement projects are an area for most concern with nearly half of all sites visited failing to me legally required standards of health and safety.
An inspection initiative undertaken by the HSE during 11th and 12th March involved a team of inspectors who visited 127 sites across the London Boroughs of Hammersmith and Fulham, Kensington and Chelsea, and parts of Westminster.
Of the sites visited 62 (48%) fell well below legal requirements resulting in the HSE taking enforcement action, of these 44 were so bad that Prohibition Notices were served requiring work to be stopped immediately. In a similar initiative last year 36% were found to be in breach, demonstrating a significant deterioration in working practices and increased health and risks for those engaged on the project.
Conditions were found to be so dangerous at 2 sites that inspectors were forced to close them completely. Failure to manage the risk of workers falling from height, either into unguarded excavations or through unprotected floor openings, as well as unshored excavations, were found to the most serious issues, resulting in more than two thirds of the Prohibition Notices. Inadequate welfare provision accounted for half of the Improvement Notices.
Commenting on the inspection initiative, James Hickman, lead HSE Inspector for the Construction Division in the City and South West London, said:
“These enforcement figures reflect the rapidly-increasing number of companies entering the basement industry to meet the current high demand for basement living space in London. Those new to basement construction work are often unaware of the risks associated with the technically challenging nature of the work or of the standards required to ensure the safety of their workforce.
“The overall picture is similar to other targeted inspections of basement work in London where we identified the same kind of problems relating to unsafe work at height and excavations, and poor welfare facilities.
“That suggests the message isn’t getting through, or that there is complacency towards health and safety across this sector of the construction industry. But that is only partly the case.
“As well as serious safety contraventions, we also found examples of better standards, often at sites managed by companies who are known to HSE, some of whom have previously received enforcement notices requiring improvements to be made.
“It illustrates that lessons have been learned, and we hope the latest failings that required action will have a similar impact with contractors new to the basement industry.”
Domestic basement projects are technically challenging and carry substantial risks. Common issues found during the inspections were:
• Work not properly planned
• Failure to appoint a competent temporary works engineer to design suitable propping to support excavations and existing structures
• Poor or absent welfare facilities for workers
• Basic precautions missing, such as edge protection to prevent falls from height, especially into excavations
• Unguarded conveyor belts
Pernix Safety Management are construction safety specialists, supporting clients to manage complex risks including those when working on Domestic Basement Projects.
The laws on driving have recently been updated and a new offence added which could have a significant impact on those driving for business and potentially their employers
Driving while under the influence of drugs is an offence under the Road Traffic Act 1988 with penalties similar to those for driving while under the influence of alcohol.
Section 56 and Schedule 22 of the Crime and Courts Act 2013 introduced a new offence of driving while over a prescribed drug limit, which can be enforced at the roadside with mobile testing equipment.
This came into force in England and Wales on 2 March 2015. Scotland has as yet not introduced this offence.
It is now illegal to drive if either:
• The driver is unfit to do so because they have taken legal or illegal drugs
• The driver has levels of some specified drugs in their blood (even if they have not affected the drivers ability
Legal drugs are prescription or over-the-counter medicines and the new laws are aimed at those who abuse them. However will also affect those who may have mistakenly or unwittingly taken too much, and not followed their doctors advice
The drugs for which permissible levels have now been set include the following
• Morphine or opiate and opioid-based drugs
Drivers can only drive after taking these drugs if:
• They been prescribed them and followed advice on how to take them by a healthcare professional
• They aren’t causing the driver to be unfit to drive even if you’re above the specified limits
If suspected of driving while having consumed they Police can require the driver to undergo roadside tests including those similar to the breathalyser for Alcohol and if considered to be above the limits or impaired the driver can be arrested and required to provide blood samples at a police station.
If convicted of drug driving, drivers can face the following penalties:
• A minimum 1 year driving ban
• An unlimited fine
• Up to 6 months in prison
• A criminal record (Drivers licenses will also carry a record of the offence for 11 years)
• The penalty for causing death by dangerous driving under the influence of drugs is a prison sentence of up to 14 years.
All of which are could clearly be devastating for the driver but also their employer in terms of restrictions of the employees role, ability, and consequently their employability.
Additionally, if the employer could be shown to have known that the employee was breaking the law and took no action to prevent them from driving, they too could also be in breach of the law which prohibits the “causing or permitting” of someone to drive whilst in breach of the law.
Employers are therefore recommended to raise employee’s awareness of the new legislation on drugs and driving, and review their Driving and Company Car policies.
Asbestos remains the single largest cause of occupational death and disease
• Asbestos still kills around 5000 workers each year, this is more than the number of people killed on the road.
• Around 20 tradesman die each week as a result of past exposure
• However, asbestos is not just a problem of the past. It can be present today in any building built or refurbished before the year 2000.
• Throughout the UK a large number of premises and older plant and equipment still contain some form of asbestos. Much of the asbestos will be hidden in the fabric of the building so not immediately obvious.
Workers most likely to come into contact with asbestos-containing products are those in the construction, maintenance, refurbishment and related trades.
When materials that contain asbestos are disturbed or damaged, fibres are released into the air. When these fibres are inhaled they can cause serious diseases including
• Mesothelioma - a cancer that affects the lining of the lungs (pleura) and the lining surrounding the lower digestive tract (peritoneum). It is almost exclusively related to asbestos exposure and by the time it is diagnosed, it is almost always fatal.
• Asbestos-related lung cancer - this is the same as (looks the same as) lung cancer caused by smoking and other causes. It is estimated that there is around one lung cancer for every mesothelioma death.
• Asbestosis - a serious scarring condition of the lung that normally occurs after heavy exposure to asbestos over many years. This condition can cause progressive shortness of breath, and in severe cases can be fatal.
• Pleural thickening - generally a problem that happens after heavy asbestos exposure. The lining of the lung (pleura) thickens and swells. If this gets worse, the lung itself can be squeezed, and can cause shortness of breath and discomfort in the chest.
These diseases do not occur immediately; they often take a long time to develop, but once diagnosed, it is often too late to do anything.
The Health and Safety Executive continues to prioritise the Control of Asbestos as one of the main concerns and key campaign areas. Inspectors are frequently visiting employers to check on on compliance with the Control of Asbestos Regualtions 2012 and generally to promote awareness of this serous subject among employers and employees alike.
The much anticipated Construction Design and Management Regulations 2015 are set to come into force on 6th April 2015.
The need to review and update the Regulations was prompted by the HSE’s 2007 research, which concluded that
• The industry views the regulations as still being too bureaucratic, having a heavy burdensome approach to the competence issue, particularly for small- and medium-sized enterprises (SMEs), and;
• The pre-construction phase, in particular the “client adviser” role of the CDM co-ordinators, is not working as well as many had hoped. Although there are good CDM co-ordinators operating in industry, the majority view of the industry is that they are not adding value.
So what’s new?
A simplified approach to the Regulations
The HSE hopes that the revisions will make them clearer and easier to understand. This change is largely aimed at small to medium projects that tend to use Small Medium Enterprise (SME’s) companies.
The current CDM Coordinator role is to be replaced by a ‘Principal Designer’.
The revised regulations require a Client will to appoint a ‘Principal Designer’ for all projects involving more than one “ trade” contractor on site at one time. Any Designers appointed to the project should not carry out any work beyond initial design stage, unless the Principal Designer has confirmed that the Client is aware of their duties.
A Principal Designer and Principal Contractor must be appointed for all projects with more than one “trade” Contractor on site.
The Client must appoint both the Principal Designer and Principal Contractor in writing, otherwise they are deemed to be carrying out these roles.
The Regulations will now also apply to domestic projects.
For projects involving more than one contractor, the Principal Contractor will normally assume the Client duties. The Client can choose to appoint the Principal Designer for the project, but if they do not wish to do so, the first Designer appointed during the preconstruction phase will be the Principal Designer for the project. Therefore the Principal Designer will be accountable to the Principal Contractor in their role as ‘Client’ for the project and will be responsible for liaising with them.
A Construction Phase Plan is required for all projects.
The Client must ensure a Construction Phase Plan is developed and implemented, by the Contractor or Principal Contractor before any works commence on site.
Notification of the Project
The Client must now notify the HSE of projects, before works commence, if they will exceed 30 construction days with 20 or more workers working simultaneously or if the project exceeds 500 person days.
The previous requirements for the demonstration of explicit competences have been removed and now Clients must more generally ensure those that are to be appointed (i.e. Designer, Contractor or Principal Contractor and Principal Designer) are able to demonstrate they have received or are in the process of receiving, appropriate information, instruction, training and supervision.
The Approved Code of Practice (ACoP) will be revised and supplemented with HSE and Construction Industry Training Board (CITB) Industry Guidance.
The HSE proposes that a shortened ACoP will be published after the legislation goes through on 6 April 2015. The CITB have published a series of five Industry Guidance notes for Clients, Contractors, Designers, Principal Contractors, and Principal Designers in January 2015.
Information, Instruction, Training and Supervision requirements.
Those working on a construction project must be able to demonstrate their capability; and have the necessary resources to, fulfil legal duties. They must provide sufficient information in relation to the preparation, provision and, where necessary, revision of health and safety information such as Pre-Construction Information, Construction Phase Plans and Health & Safety Files.
The safe use of lifting equipment is a wide ranging and complex area of health and safety covering all lifting operations and equipment from large scale dock side and construction site cranes, through to passenger lifts and the smaller fixed or portable equipment used in workshops, or for moving and handling patients in a health care setting.
The Lifting Operations and Lifting Equipment Regulations (LOLER), which were first introduced in 1998, define the legal responsibilities on those using lifting equipment and were accompanied by an Approved Code of Practice and guidance, which offered practical examples of how safety and compliance could be achieved.
The Approved Code of Practice has recently been reviewed and this new edition brings the document up to date with regulatory and other changes. The guidance clarifies which equipment is subject to the provisions of the regulations and the role of the competent person.
The context and examples have been expanded to show that LOLER applies across every sector using lifting equipment. New examples show the impact on the health and social care sector
In total there are over 120 specific changes from the previous Approved Code of Practice and; while the HSE have stated that “The legal duties it places on duty holders, the advice it provides and the methods of compliance described remain largely unchanged” there is clearly a need for all organisations involved in the use or maintenance of lifting equipment to refresh their knowledge and understand of their obligations.
The first phase of the Governments new Fit for Work initiative was launched on 15th December.
The scheme is designed to assist, employers in reducing sickness absence, and their staff who have been off sick in returning to work as part of a broader occupational heath agenda
Initially the scheme provides on-line and telephone based advice on return to work issues and preventing sickness absence. In the coming months a second element will be introduced which will feature the provision of government funded occupational health assessment and advice via GPs.
The scheme can be triggered once an employee has or is likely to reach four weeks sickness absence, at which point employers, with the employees consent, will be able to refer the employee to a Occupational Health professional for advice on recovery, recuperation and return to work issues
Following an assessment, employees will receive a return to work plan. This will contain recommendations to help them get back to their job more quickly and information on how to access appropriate interventions.
|Pernix Safety Management - Director – Alan Hurst C.M.I.O.S.H
Registered Office – Peterborough, Cambs, PE3 6FB
Contact 01733 331300 / 07597 793 626 email@example.com