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Health and Safety – April/May 2018

fork lift truck driver discussing checklist with foreman in warehouse Print publication

24/05/2018

Final report on building regulations and fire safety; latest £1 million-plus fines; other sentencing news and more.

Independent review of building regulations and fire safety – final report published

Dame Judith Hackitt’s long-awaited final report on building regulations and fire safety was published on 17 May 2018. The government announced an independent review following the Grenfell Tower disaster and an interim report was published in December 2017. Dame Hackitt concludes that the regulatory system covering high-rise and complex buildings is not fit for purpose and there is a need for a “radical rethink” of the whole system and how it works. She calls for major cultural change.

The review identified numerous weaknesses in the system and the report sets out a series of recommendations to address these. This includes a possible new regulatory framework which is intended to be more straightforward, comprehensible, rigorous and effective. The proposed framework is outcomes-based, rather than prescriptive, a move which is likely to raise concerns among industry experts and MPs who have been calling for a more prescriptive approach to building regulation. The report recommends, among other things, the establishment of a new Joint Competent Authority to oversee better management of safety risks across a building’s entire life cycle. The need to consider each building as a single inter-locking system is a key theme. See our recent newsflash for further details.

The fire at Grenfell Tower appeared to be accelerated by the exterior cladding system. Shortly after the final report was released, the government confirmed that it will consult on banning the use of combustible materials and cladding systems on high-rise residential buildings. The report stopped short of recommending an outright ban.

In other developments:

  • The separate, extensive, public inquiry into the disaster opened on 21 May 2018. It will start to hear evidence in June 2018. This phase will focus on the factual narrative of the events of the night of 14 June 2017.
  • The government issued a consultation on restricting or banning the use of desktop studies as a way of assessing the fire performance of external cladding systems.
  • Research commissioned by the Association of British Insurers has “exposed the utter inadequacy of the laboratory tests currently used to check the fire safety of building materials”. See the press release.

£1 million-plus fines continue to bite

The rate at which fines of £1 million or more are being handed down for health and safety breaches shows no sign of slowing down:

  • In a prosecution brought by Milton Keynes Council, logistics company DHL was fined £2 million after a worker was fatally crushed between a reversing lorry and a loading bay at its Milton Keynes depot.
  • Royal Mail was fined £1.6 million – its largest ever for health and safety offences – after a member of the Communications Union was knocked unconscious by a departing vehicle at the Jubilee Royal Mail Centre in Hounslow, suffering multiple serious injuries.
  • A car parts manufacturer was fined a total of £1.6 million in relation to two separate incidents, after five people fell seriously ill with Legionnaires’ Disease and a worker suffered serious burns in an explosion. The company had failed to effectively manage the water cooling systems in its factory, and the Health and Safety Executive (HSE) found that adequate measures were not put in place to protect operators from explosion risks. There had been previous explosion incidents.
  • In a prosecution brought by Ealing London Borough Council, Tesco was fined a total of £1.6 million after a member of the public suffered serious and life-changing injuries when a driver carried out an unassisted reverse (which was contrary to internal procedures) into the loading bay.
  • A civil engineering firm and a district heating firm were each fined £1 million after a worker was fatally crushed when a large heating pipe which he was unloading fell on top of him. The pipes were incorrectly stacked. The HSE inspector said: “This was a wholly avoidable incident, caused by the failure of both companies to follow safe systems of work, and a failure to identify the risks. This tragic incident led to the avoidable death of a young man. There was a lack of planning for the work carried out and, as a result, inadequate controls put in place”.

Round-up of other sentencing news

  • Two fairground workers were convicted of gross negligence manslaughter following the death of a seven-year-old girl in a bouncy castle incident. The inflatable had not been adequately anchored to the ground and the couple failed to monitor weather conditions to ensure that it was safe to be in use. The Sentencing Council consulted in the second half of 2017 on a draft sentencing guideline for gross negligence manslaughter. See the August 2017 edition of our Regulatory round-up for more details.
  • A pre-cast concrete products manufacturer was fined £660,000 after an employee carrying out maintenance work was fatally injured when he became trapped by machinery. The HSE investigation found that the company had not implemented procedures to ensure machinery was isolated before maintenance work was started. The HSE inspector said: “This tragic incident, which led to the avoidable death of a man, was easily prevented and the risk should have been identified. Employers should make sure they apply effective control measures to minimise the risk from dangerous parts of machinery. Maintenance work should only be carried out when the piece of plant/equipment is isolated and confirmed safe. There should not be any spare keys to captive key systems”.
  • Two directors of a waste management company received suspended custodial sentences after an employee suffered serious injuries when his arm became caught in a conveyor.
  • A company director received a suspended custodial sentence and was ordered to carry out 240 hours of unpaid work after a worker suffered life-changing injuries when he fell through a fragile roof.
  • A building contractor was sentenced to five months’ and two months’ imprisonment respectively (to run concurrently) for breaches of the Construction (Design and Management) Regulations 2007 and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, following a house collapse in Brighton.
  • The Office for Nuclear Regulation has notified Sellafield Ltd that it intends to prosecute the company in relation to an incident which resulted in personal contamination to an employee. See the press release.
  • A company dealing in trucks and trailers has had its £475,000 fine, following the death of a contractor, reduced to £200,000 on appeal [1].
  • A £300,000 fine imposed on University College London, which has charitable status, was upheld on appeal [2].

News from Europe

The European Agency for Safety and Health at Work launched an e-tool to help organisations assess and manage the risks of dangerous substances. This is one of the resources in its 2018-19 Healthy Workplaces campaign.

The European Commission published a report on the Product Liability Directive. As the Directive has never been evaluated since its entry into force in 1985, and in light of recent technological developments, the Commission carried out an evaluation to assess its performance. While the Directive remains an adequate tool, there are challenges relating to, among other things, digitisation, the Internet of Things, artificial intelligence and cybersecurity. The Commission has launched an expert group on liability, which will: assist the Commission in interpreting, applying and possibly updating the Directive, including in light of developments in EU and national case law, the implications of new and emerging technologies and any other development in the field of product liability; and assess whether the overall liability regime is adequate to facilitate the uptake of new technologies by fostering investment stability and consumer trust. The Commission will issue guidance on the Directive as well as a report concerning artificial intelligence, the Internet of Things and robotics in mid-2019.

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[1] R (on the application of Health and Safety Executive) v ATE Truck & Trailer Sales Ltd [2018] EWCA Crim 752
[2] R v University College London [2018] EWCA Crim 835

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