Above: Allan Thomson (left) and Michael Smith

April 2015 H&S Legal Update:

Two men (pictured above) are jailed and are given massive fines following one near miss, one serious injury and then one fatal accident on the same site within 48 hours.

Allan Thomson was jailed for six years and fined £400,000 after he and his company Building and Dismantling Contractors Ltd were found guilty of safety breaches.

Michael Smith and his company C. Smith and Sons (Rochdale) Ltd, were also found guilty. Mr Smith was jailed for eight months and fined £90,000.

This case shows how the new tougher sentencing guidelines, which came into force earlier this year, have affected the penalties given in this case (see last legal update)

The company originally decided to take a roof down using heavy plant which would not have involved any working at height. Once awarded the contract they decided to dismantle the roof gradually by send men up onto the roof.

Following one near miss, where Mr Harrower nearly fell through a fragile roof light and then a serious fall, where another worker fractured numerous bones including his pelvis and spine, the company continued working in such a manner, against advice given by Police and Ambulance staff, until the fatal accident happened at 4 pm the same day as the other serious injury. Mr Harrower died after suffering from catastrophic head injuries following his fall.

http://www.shponline.co.uk/man-jailed-for-six-years-following-fatal-fall/?cid=ema-Marketing-12%20April%202016%20-%20SHP%20Daily%20Update%20-CTA-

In a victim impact statement, Mr Harrower’s partner Jane Watt said their two children were struggling to come to terms with the knowledge that their father wouldn’t get to see them grow up.

Balfour Beatty fined £1m after death of road worker Larry Newman, from Maidstone, on A2 near Barham:

Engineering giants Balfour Beatty have been fined £1 million after the death of a worker repairing a barrier on the A2 near Barham.

Larry Newman, 37, from Maidstone, was killed after he was struck by the arm of a crane being used in the work in October 2012.

Today, Balfour Beatty Civil Engineering, which had a £3 billion turnover in 2014, admitted breaching two health and safety laws.

The firm was told by Judge Adele Williams: "There was a significant risk to employees and non-employees and it was one which was foreseeable. The company's failure caused the death of Mr Newman."

The court heard how the victim, of Plains Road, Maidstone had married his childhood sweetheart Lisa in 2000 and they had four children.

Judge Williams, who read the family’s victim impact statement, said: "They have been devastated by his death.

Their loss, grief and anguish is all too apparent. No sentence that I can impose can deal with that – neither is it intended to put a value on his life. It is not possible to do so."

Prosecutor Claire Harden-Frost told Canterbury Crown Court how a section of the A2 was closed after a French-registered lorry ploughed into the central reservation in October 2012.

Balfour Beatty had the contract to repair the barrier and it was their responsibility to ensure the safety of workers.

Ms Harden-Frost said a three-tonne excavator, which could have done the work, wasn't available – so workers improvised using a 1.5 tonne machine for the work.

"There was a significant risk to employees and non-employees and it was one which was foreseeable" - Judge Adele Williams

But when the workers struggled to remove a concrete post, they were "left to their own devices".

During the operation, the arm of the crane was used to steady the post as Mr Newman and a colleague were putting chains in place.

But the prosecutor said the crane's arm moved, trapping Mr Newman's head and killing him.

An investigation by the Health and Safety Executive revealed there had been no "method statement" and no safe method of work which had contributed to the tragedy.

The judge said: "Removing broken posts and their footings was not an unusual occurrence in this sort of repair and would have been done on countless other occasions.

"The fact that employees were meant to use their own initiatives demonstrates the inherent dangers."

A vehicle used to tow the three-tonne excavator to the site was deemed not powerful enough and the workers used the smaller vehicle in the meantime.

The judge added: "The harm caused here was the loss of a life and it was obvious to the company that the failure was easily avoidable and could have been remedied."

Members of Mr Newman’s family sat in the public gallery throughout the hearing.

Afterwards, Balfour Beatty said in a statement: "Balfour Beatty has offered its deepest sympathies to the family and friends of Larry Newman who was killed in this tragic incident.

"The safety of the public and our workforce is always our primary concern.

"Balfour Beatty has since taken appropriate corrective action to take the lessons learnt from this tragic incident and share them and improvements across our business."

Key legislation changes for April 2016 and beyond

Looking back

2015 into the start of 2016 was a huge period for health and safety legislation with the move to CDM 2015 and the changes to the sentencing guidelines for health and safety offences, corporate manslaughter and food safety offences.

CDM2015 saw a simplification of the construction regulations and the role of CDMC replaced with principal designers. Over one year on and it is hard to say exactly how the construction sector has taken to the new legislation, or if one of the main aims (to reduce the amount of paperwork generated) has been met.

This may change when the first prosecution under CDM 2015 takes place. The HSE answers some of the more common CDM questions here: CDM2015 FAQs.

The other significant change has been the introduction of the new sentencing guidelines for health and safety offences, corporate manslaughter and food safety offences which came into force on 1 February 2016 and apply to any case sentenced in courts in England and Wales after that date.

Described as the most dramatic change to health and safety legislation since the introduction of the Health and Safety at Work etc. Act in 1974, the guidelines have been introduced to give courts comprehensive guidance for these offences. They introduce a structured nine step approach that the Court should follow, so as to calculate sentences. This involves plugging culpability and harm factors into a series of tables to reach recommended starting point fines, as well as ranges of fines above and below the starting points.

Upcoming changes

March 2016

Trade Union Bill

March 2016 (Report stage in House of Lords)

The proposed change to the law will introduce requirements, including:

– In all ballots, at least 50% of members entitled to vote must do so. This is in addition to the

need for a simple majority of those votes cast to be in favour of action (eg if 100 members are

balloted, at least 50 must vote, of which 26 or more must vote yes for a valid mandate).
– Permitting the use of agency workers to cover striking staff.
– A doubling of the minimum notice of strike action to two weeks.
– A requirement for pickets to be supervised by a named official.

What the Government says: The government is introducing fundamental reforms to modernise trade union law. Reforms introduced by the Trade Union Bill will:

 Ensure that strike action only ever takes place on the basis of clear and representative mandates, through new thresholds that strike ballots must meet.
 Improve transparency and oversight of trade unions.
Require reasonable notice of strike action, and give employers greater chance to prepare for industrial action and put in place contingency plans.

What the unions say:
-  The government’s trade union bill threatens the basic right to strike.
-  Employers will be able to break strikes by bringing in agency workers to cover for strikers.
  
  This could have big safety implications, lead to worse public services, and will undermine the right to strike. The bill also proposes huge restrictions on peaceful picketing and protests. Picket supervisors will have to give their names to the police – raising concerns about blacklisting and will need to carry a letter of approval their union.
-  There are lots of other proposals in the bill too – including powers to restrict the ability of unions to recruit and represent members in the public sector, restrictions on how unions use their resources and lots more “unnecessary red tape”.
-  And all of it taken together fundamentally undermines the rights for unions to organise, negotiate and strike in defence of their members at work.
  
  Proposed HSE Innovation Plan
  
  The government, as part of its productivity plan, has asked all departments to work with their regulators to publish an Innovation Plan by March 2016. The aim of the plan is to find out whether the UK regulatory framework is set up to support innovation and disruptive business models. Regulators have been asked to consider three specific issues:
-  How legislation and enforcement frameworks could adapt to new technologies and disruptive business models to encourage growth.
-  An assessment of how new technology is likely to shape the sectors being regulated.
-  Actions for how regulators could better utilise new technologies to generate efficiency savings
  
  and reduce burdens on business. More information is due very soon.
  Other legislation changes for March include:
 The Offshore Installations (Safety Zones) Order 2016 (E/NI/S/W) April 2016

Changes to PPE Regulations - transition period 2015 - 2018
The PPE directive was one of the first new approach directives, which came into effect on 1 January

1993.

Now over 20 years old, the directive is being updated to reflect current technologies and processes for developing and bringing PPE to the market.
The changes mean the old Directive will be re-implemented as a regulation in 2018 rather than remain in its current status, and the new regulation will not have to be transposed into each Member State’s national law.

The main changes taking place include:

- Moving hearing protection from Category 2 to Category 3 PPE

- Changing life jackets from Category 2 to Category 3 PPE

- Issuing a Declaration of Conformity with each PPE or at least a link to where it can be

obtained

- Possible covering domestic PPE (e.g. oven gloves)

- Bringing the regulation in line with similar European requirements, such as the

Medical Devices Directive by suggesting a five-year certificate validity.

The British Standards Institute has a whitepaper detailing the history, the proposed scope of the regulation, obligations and timelines.

Veteran mesothelioma payments

On 16 December 2015, the MOD changed the rules to allow veterans diagnosed with mesothelioma on or after that date to have the choice between a one-off, tax-free lump sum or regular, smaller payments. The department has now extended the eligibility for the lump sums to those diagnosed before that date. Legislative provisions will be made to enable lump sums to be paid from 11 April 2016. Find out more...

Mesothelioma (Amendment) (No. 2) Bill 2015-16

This Bill is expected to have its second reading debate on Friday 22 April 2016. Other changes for April include:

 The Electromagnetic Compatibility Regulations: Draft 2016

 Lifts Regulations : Draft 2016

 The Damages for Bereavement (Variation of Sum) (Northern Ireland) Order 2016

 Transfer of functions, fire and rescue services Order 2016

 Employment rights, increase of limits Order 2016

 Health and safety and nuclear, fees Regulations 2016

 Modern slavery, duty to co-operate with Commissioner, Northern Ireland Act 2015, Northern

Irish Public Authority, regulations 2016

June

The UK referendum on whether or not to remain in the EU 23 June 2016

How will health and safety be affected by the outcome of the referendum?

Although the basis of the health and safety regime in the UK was established in 1974, it has been underpinned and extended by EU legislation. The main element of the EU legislation is the Health and Safety Framework Directive (89/391/EEC) which establishes broad-based obligations for employers to evaluate, avoid and reduce workplace risks.

The 24 main Directives on health and safety cover many of the most important sectors or risk factors that lead to death injury and ill-health in the workplace such as chemical safety, carcinogens, musculoskeletal disorders, machinery safety and personal protective equipment, which means that minimum standards exist across Europe.

Other areas to consider when making your vote are:

– Working time regulations

– Maternity rights

– Parental leave rights

– Equality

– Worker’s rights

July

Safety, health and welfare at work, general application Amendment, regulations 2016 (Ireland) Pressure equipment, safety Regulations: draft 2016 Coming into force 19th July 2016 (E/NI/S/W)

Further things to look out for in 2016:

 ISO 45001 due for publication in October 2016

 Health and Safety Executive (Powers) Bill 2015-16

 Simple pressure vessels, safety Regulations: draft 2016 date TBC

 Smoke-free premises etc Wales Amendment, regulations: draft 2016 date TBC

 Equipment and protective systems intended for use in potentially explosive atmospheres Regulations: draft 2016 date TBC

 Explosives Regulations 2014, amendment, regulations: draft 2016 date TBC

 Electrical equipment, safety Regulations: draft 2016 date TBC

Key environment and energy changes

Environmental permitting, England and Wales Amendment, no 2, Regulations: draft 2016

The Government has confirmed the consolidation of environmental permitting rules in England and Wales, with a view to them coming into force on 1 January 2017.

Hazardous Waste Producers in England no longer need to register – 1 April 2016 (England)

Producers of hazardous waste in England will no longer need to notify their premises with the Environment Agency.

The format of the unique consignment note code, which appears on every consignment note, will change.

Other changes for 2016 include:

 Air quality, England Regulations - draft 2015

 Onshore hydraulic fracturing, protected areas Regulations - draft 2015

 Electricity capacity Amendment, regulations - draft 2016

 Renewables obligation closure etc Amendment, order - draft 2016