UK Health and Safety e-lert - Crowell & Moring

Welcome to Crowell and Moring's latest Health and Safety newsletter. This newsletter includes an element of environmental related issues as well as some wider risk management issues. We hope it will be valuable reading for Health and Safety Managers and Human Resources Managers alike. We would welcome your feedback on what you would like to see in future e-lerts.

In this issue we will be considering risk assessments again and make no apology noting in particular the fine imposed recently upon Bodycote. We provide a summary of the Judicial Review to the WEEE Regulations. Coroners courts are gradually playing a greater role in the influence it has on health and safety investigations, a coroner being in a position to order that an investigation be reopened if it has been closed and we review in particular the summary of the reports issued under Rule 43 of the Coroner's (Amendment) Rules 2008. We consider the Solicitor's Regulatory Authority Guidance to solicitors when acting on behalf of an employer and an employee.

Risk assessments again!

There is no apology for yet another article on the topic of risk assessments. The management of Health and Safety at Work Regulations 1999 provide at Regulation 3 a requirement for every employer to make a suitable and sufficient assessment of risks. Not only is it a requirement to undertake a risk assessment, but there is also the need to ensure that the findings are communicated to the employees who will be undertaking the task assessed….

There also needs to be in place a robust audit system. All too often senior managers within an organisation are reassured by seeing volumes of risk assessments. This is often a false sense of comfort. Time is wasted in preparing risk assessments unless they are implemented. Regulation 5 provides a management cycle which we would encourage you to review unless you are familiar with the Regulation.

How often do you as an organisation review the risk assessments?

How often do you audit compliance?

Do you undertake unannounced spot checks?

Is a peer level review encouraged?

Bodycote was fined £533,000 and £200,000 costs for admitting failings to ensure the health and safety of its employees contrary to Section 2(1) of the Health and Safety at Work etc Act 1974. This is one of the highest fines since the Act came into force. The facts of the case involved employees of Bodycote entering a concrete pit. Argon gas had leaked into the pit displacing the oxygen levels. Two employees were killed. The confined spaces risk assessment was completed in 2001. The incident was in June 2004. The risk assessment had not been reviewed. A safe system of work was written but not properly trained to the employees. Bodycote had a previous not dissimilar incident at their plant in California.

The facts in this matter could well have lead to an investigation focusing on the possibility of a corporate manslaughter prosecution had the Corporate Manslaughter and Corporate Homicide Act 2007 been in force when the incident occurred. The investigation would have focused on establishing whether there was "management failure" which was a cause of death. Risk assessments are the backbone of effective health and safety management. The concept should be ingrained not simply in the minds of those who manage health and safety within the workplace but all employees as they go about their daily tasks.

The powerful provisions of Rule 43 Coroner’s Rules 1984

As of 17 July 2008 the Coroner’s (Amendment) Rules 2008 amended Rule 43 of the Coroner’s Rules 1984. This provides a system whereby Coroners make reports to prevent future deaths. The recipient of the report has 56 days to respond. There is a statutory duty to respond. A summary of the reports and responses has been published. This is the first such insight into the changes….

Between 17 July 2008 and 31 March 2009 Coroners in England and Wales issued reports under Rule 43 at a total of 207 Inquest. Rule 43 reports were most commonly issued in relation to hospital deaths accounting for 28% of the reports. A further 19% of reports were issued in relation to the circumstances surrounding road deaths and 10% in respect of deaths involving an accident at work or health and safety issues.

Rule 43 reports were sent by Coroners to a wide range of organisations and institutions. Given that the most common category of Rule 43 reports was in relation to hospital deaths, NHS Hospitals and Trusts were the most frequent recipients. They receive 31% of the reports. Ministers and Central Government Departments received 19% while Local Authorities received 14%.

The majority of the reports are very specific and relate to a local situation or organisation. However, some have a potential wider impact as listed below:-

a) Highways safety
A cyclist collided with a stationary lorry. There was no warning red triangle displayed. The Department for Transport received a letter from the Coroner suggesting that as in some other European countries, placing a red triangle at some distance should be made compulsory. Such triangles were permitted but not mandatory was the Department of Transport's response. These are not considered to be more effective than vehicle hazard warning lights, which may be used to warn other persons of the temporary obstruction.

b) Vehicle safety
An elderly pedestrian was killed by a tipper lorry. The vehicle drove over her at traffic lights as the lights changed to green. As a result of the design of the lorry the driver was unable to see if a pedestrian crossed immediately below its front. The coroner in a letter to the Department for Transport suggested that legislation should be amended so that a front windscreen mirror is made compulsory, whatever the date of the manufacturer of such lorries. The Department for Transport agreed that they will encourage installation of front mirrors where feasible, but are unable to change national legislation.

c) Railway deaths
A man was discovered in the early morning seriously injured on a railway line. One of a possible 17 trains had hit him during the previous 13 hours. He suffered severe injuries to his legs as well as subsequent hypothermia due to being undiscovered for some considerable time. He died some 8 hours after being taken to hospital. The Coroner wrote to British Transport Police and Devon and Cornwall Constabulary that vital evidence was lost through inadequate investigation. The British Transport Police replied that their procedures were being reviewed.

d) Accident at work/health and safety related deaths
An individual decorating the side of a house hired a mobile platform (or zip up scaffolding) from a company which provided equipment and instructions. He died from cranial injuries following a fall. The Coroner wrote to the Hire Association Europe (HAE) requesting that HAE should encourage its members to enquire carefully with prospective hirers as to their capability to use the equipment being hired. HAE reply that they were willing to circulate their membership as requested, referring to the particular case.

The reports and replies highlight the increasing importance that organisations and individuals who are asked to attend a Coroner's Court to give evidence, should be fully prepared in advance. The amended Rule 43 procedure and the publication of the responses could potentially have far reaching effects. We suggest that you consider the following:

• If there are immediate steps to be taken after a death - implement these. The Rule 43 report is less likely to be issued if at an Inquest information can be provided in relation to the steps already taken.
• If you are served with a Rule 43 report then diarize the time limits and adhere to them. You should seek advice when drafting the response remembering at all times that the response is likely to be published.
• Rule 43 reports and responses could potentially be material used in a corporate manslaughter investigation. If a death arises in circumstances where a Rule 43 report has identified failings, then the reply to the report would be closely considered as well as the implementation of those actions identified in the reply. If the remedial steps have not been implemented it could lead to the organisation and individuals being vulnerable to prosecution.

UK High Court rules on the collection and disposal of electrical equipment

On 31 July 2009, the UK High Court issued a judgment in an important test case on the UK’s system for collection and disposal of waste electrical and electronic equipment ("WEEE") such as TVs, computers, washing-machines, refrigerators and other household goods. The ruling concerns the UK’s WEEE Regulations 2006 (as amended by the WEEE Regulations 2007), which transpose the European Union’s WEEE Directive 2002/96/EC.…

The UK Regulations place responsibilities on producers (mainly manufacturers and importers) and distributors (generally wholesalers, retailers and distance sellers) to finance the collection and responsible treatment of WEEE (including recovery and disposal). The case raises important issues regarding the transposition of the WEEE Directive into UK law, the underlying rational of adopting market-based schemes, and the application and enforcement of the WEEE Regulations.

Under the WEEE Regulations, producers can pay directly for EEE collection and responsible treatment, but a more common practice is to do so through compliance schemes, which are essentially collection cooperatives. The WEEE Regulations oblige an operator of a scheme to provide information to the appropriate authority about the total amount of EEE that each member company has put on the market in the UK in each compliance period. Under this scheme, the operator is required to provide a "declaration of compliance" to the appropriate authority, accompanied by copies of "evidence notes". Operators of schemes must also have viable plans to collect an amount of WEEE that is equivalent to the amount of WEEE for which it will be responsible for financing.

The High Court judgment of 31 July concerns a case brought by the Recycling Electrical Producers' Industry Consortium ("REPIC") - which is one the operators of the compliance schemes - against the UK government's Department for Business and the Environment Agency. REPIC argued, inter alia, that:

• there are systemic flaws in the regulatory regime, not least because other operators, in some cases intentionally, collected more WEEE than they needed to in order to comply with their obligations; as a consequence REPIC was unable to collect sufficient WEEE and thus was forced to buy evidence notes so that it could make appropriate declarations, and further, that the purchase of evidence notes from other operators was undertaken at "ransom prices"; and
• the UK authorities failed to take action against schemes that deliberately and significantly over-collected WEEE, which meant that other operators were left facing enforcement action by regulators for not hitting collection targets.

However, the UK Court, presided over by Mr. Justice Wyn Williams, concluded that:

• the WEEE Directive had been lawfully transposed into UK law by the WEEE Regulations;
• the sale and purchase of evidence notes does not necessarily infringe the provisions of the WEEE Directive or the WEEE Regulations; and
• although the regulations do not allow intentional over or under collection, the authorities' failure to prosecute the operators that had over-collected WEEE was not irrational or unreasonable and that the process of monitoring and warning was a proportionate response.

Although the High Court decided largely in favour of the UK authorities, the case is likely to have an impact on the current system and the way companies organise the collection of electronics waste in the UK. In particular, companies should note that Williams wrote that producers' compliance schemes must have viable plans to collect no more and no less than is necessary to meet their WEEE obligations and therefore, a breach occurs if a scheme deliberately plans to collect more than its share, as was the situation in this case. Thus, companies are urged to check that any compliance schemes they are involved in are in compliance in this respect. Having said that, companies may be somewhat relieved to learn that Williams also mentioned that if a scheme has plans to collect the correct amount, but then happens by miscalculation to collect more than its share, no breach of the law has taken place.

Following the ruling, MP Ian Lucas, the UK minister for business, said the government would continue its plans for amendments to its WEEE Regulations in 2010 to reduce the administrative burden placed on businesses. He added that the government is also working with other Member States on the proposed recast of the WEEE Directive. [For a brief summary of the WEEE recast, see the following Crowell & Moring client alert].

Conflict of interest

The SRA’s (Solicitors Regulation Authority) revised guide November 2008 deals with the issue of whether the employer’s solicitor can attend a Health and Safety Executive interview with an employee. The Solicitor’s Code of Conduct provides guidance to solicitors on a number of issues to include conflicts of interest; disclosure; confidentiality.

The guidance in relation to representing employers and employees does not form a part of the Solicitor’s Code. A number of scenarios arise.

• Solicitors acting for one employee and legal fees paid for by the employer. In this situation the source of the funding is irrelevant to the solicitor/client relationship. The solicitor's duty is towards the employee.
• Solicitor acting for more than one employee. It is essential that in these circumstances the solicitor assesses whether there is a conflict between the interests of both employees. If there is then the solicitor can normally only act on behalf of one of the employees.
• Acting for the employer only. There is nothing preventing the solicitor giving the employee information about the interview process. If a solicitor attends an interview with the employee the employee must understand that the solicitor acts for the employer and owes duties to the employer. There should be no compulsion placed on an employee to attend an interview with the employer's solicitors present. If the interest of the employer and the employee are coincident then it may be possible to represent the employer and employee although the situation must be kept under review.

Although SRA Guidance does not form a part of the Solicitor's Rules, the HSE and other investigating authorities frequently object to the employer's solicitors representing an employee at interview. This is not an objection that they can raise.

It is for the solicitor to be satisfied as to whether a conflict exists. Frequently an employer in conjunction with its solicitor will conclude that employees, where there exists a conflict of interest or the real potential for a conflict of interest, should be represented by a separate solicitor. This can also reinforce to the investigating authority the cooperation provided by the employer to the investigation. It also removes any opportunity for the investigating authority to suggest that undue influence or pressure is being placed upon an employee to "tow the company line".

The issue of legal representation at interviews is an important strategic issue. Ideally employers should include within their Disaster Plan a section detailing arrangements for legal representation in the event of an investigation by the Health and Safety Executive or other regulatory body. It is prudent to have in place a clear understanding before an incident occurs, who would present the employer and who would represent the employee.

Once an incident occurs then early and immediate legal advice is frequently required by an employer and an employee. Well organised employers are planning for this eventuality.

Construction fatal accidents

Rita Donaghy published her report in July 2009. It has received much press attention, it being an inquiry into the causes of construction fatal accidents. There are 28 recommendations in total. Some are more controversial than others and some more costly to implement than others. I propose highlighting a few recommendations

• A campaign raising awareness for the need to report accidents and near misses
• A positive duty on Directors to ensure good health and safety management and promoting the principles of the IOD HSE guidance for Directors.

The information that can be gathered from reports of accidents and near misses is one of the cornerstones of good health and safety management. Reviewed properly they form an integral part of the risk assessment process and can lead to a more serious accident being prevented. However, measuring the success of a health and safety management programme is often difficult. There is a tendency to focus on "zero accidents". When used correctly it is a perfectly laudable approach. However, all too often the message delivered is mainly for statistical purposes and not with the true intention of effective health and safety management. Not reporting accidents and near misses could indirectly be the cause of a serious incident. Any campaign to raise awareness of the need to report accidents and near misses will lead to an increase in reporting. Those managing the campaign should educate and inform the recipients of the statistics, on why this is the case. There is a real prospect that within a short period of time the trend will change; lessons will be learned from the accidents and near misses reported, and the number of incidents will start reducing.

A controversial recommendation is to impose positive duties on Directors. She states in her report

"As with most advances in society e.g. seatbelts in cars, drink driving, there comes a time when good practice has to become a legal requirement".

Much debate and representation occurred on this topic during the passage of the bill which lead to the Corporate Manslaughter and Corporate Homicide Act 2007. That Act excluded any provision for the prosecution of individual Directors.

Surveys on the attitude and approach of Directors towards health and safety, depending on the sample, produce very differing results. Some suggest that there is a far greater awareness amongst Directors of their health and safety responsibilities. Other surveys suggest that the IOD/HSE joint guidance has not increased awareness. This later view is possibly reinforced when a number of health and safety publications defend their reporting of cases with high fines. They emphasising the need to support risk managers and health and safety managers in delivering a message to Directors and senior managers that matters of health and safety need to be taken seriously.

Whatever the passage of this recommendation the picture presented is one of increasing regulatory requirements. Well organised businesses perceive this to be unfair and unnecessary when their own leadership sets high standards. Increasingly there is evidence that not only amongst smaller organisations but also the larger, health and safety management is not truly integrated into the management of the business as a whole. Insofar as Directors are concerned then the Health and Safety at Work etc Act 1974 S37 enables a Director to be investigated and prosecuted a provision that is increasingly being utilised.

There will be much debate in relation to the proposals and the DWP (Department of Work and Pensions) is consulting with stakeholders. The construction industry will remain under the spotlight for some time.

Miscellaneous matters

• Carbon credits - fraud investigation
• Stress - another notice
• Madonna!

Carbon Credits

If your organisation actively engages in Carbon trading in the UK or Europe you should be aware of the current HMRC investigation. A form of tax fraud known as MTIC (Missing Trading Intra-Community) or Carousel fraud is the background. What happens is that high value low volume goods are traded in a circle with at least one step passing into or out of the UK. The consequence of this intra-community trading is that VAT is not charged on the outbound leg of the series. This allows one of the traders in the loop to reclaim any VAT that he has paid on goods purchased by him where he is unable to "offset" the monies he has paid out by reference to VAT he receives on his sales. It is at this point, having a significant sum of VAT due to the HMRC, that the trader goes missing leaving HMRC with a shortfall.

The HMRC has noticed sums totalling billions of pounds being reclaimed on carbon credit trading activity in almost identical arrangements to the previous MTIC frauds. Given that losses have arisen over a relatively short period (the last 6 months or so) they suspect concerted fraudulent activity and an investigation team has been assembled.

Accordingly any organisation who has been involved in any significant trading in carbon credits in the UK (and potentially the rest of the EU too) is likely to be faced at the very least with enquiries and demands for assistance by the HMRC (and local equivalents). The primary targets will be the businesses actively trading in the market e.g. commodities brokers. Large scale corporations undertaking this type of trading as part of a policy of environmental protection may well not be exempt from review. Many of our lawyers but notably Peter Kiernan and Gez Owen have a substantial amount of experience in such investigations and if you require their assistance then they can be contacted on 020 7413 0054 and 020 7413 0050.

Stress

In our last issue we identified the need to have in place a policy to manage stress within the workplace. The Health and Safety Executive has served Liverpool Hope University with an enforcement notice as the HSE concluded that the University had failed to adequately assess the risks from work related stressors. An improvement notice has been issued with a revised compliance date for 7 December 2009. As identified in our July bulletin, stress in the workplace is a clear priority of both the Health and Safety Executive and Local Authorities hence it is important that organisations ensure that they have in place a stress management policy.

Madonna

One would not expect the name Madonna to appear in a newsletter relating to Health and Safety, however the roof of a stage that was being built in Marseille collapsed on 16 July 2009. The stage was being built for a Madonna concert. Early indications suggest that there were not in place adequate measures to manage contractors. It is a reminder to event management companies to carefully consider issues of health and safety when organising events. The management of Health and Safety at Work Regulations 1999 Regulation 11 state that where 2 or more employers share a workplace then cooperation and coordination between the employers is required. When involving contractors then it is important to:

• Check their competence
• Share information with them in relation to the environment in particular access routes for pedestrians and vehicles
• Information sharing in relation to the attendees at the event e.g. children, elderly, disabled
• Emergency arrangements

On all occasions the actions of the contractor must be monitored. Remember obligations under health and safety laws cannot be delegated.