Regulatory Outlook | Health and Safety | July 2018

Written on 26 Jul 2018

Current issues

Fire safety standards in high rise buildings

Following the Grenfell Tower disaster, an Independent Review of Building Regulations and Fire Safety led by Dame Judith Hackitt has was published in May 2018.

The report recommends a step-change in the regulatory framework for fire safety, including the creation of a new Joint Competent Authority (JCA), clarification of roles, responsibilities and accountability of duty holders and more ‘teeth’ for regulators.

The proposed changes will be significant for many businesses and are especially relevant to developers, investors and other building owners / landlords. The report focuses initially on High Rise Residential Buildings (10 storeys or more) and recommends that ‘duty holders’ (the framework for which is likely to mirror that under the CDM Regulations) consult with the JCA at three separate ‘gateway points’ during the life-cycle of the project in order for the development to progress.

Use of  combustible cladding in high rise residential buildings

The government has launched a consultation on banning the use of combustible cladding in high-rise residential buildings in England, which ends on 14 August 2018.

The consultation has been launched despite Dame Judith Hackitt’s review (see above) not recommending a ban in these materials. The government’s preferred approach, as set out in the consultation, would be to amend the existing Building Regulations 2010 to ban the use of combustible cladding materials.

The government is also committed to clarifying ‘Approved Document B’, the guidance document that accompanies the regulations. These documents do not create a legal obligation, however, and it would be possible to avoid following them if the rationale for safety could be demonstrated in a different way (such as adherence to the objective in the Building Regulations).

HSE priorities for 2018/19

The Health and Safety Executive (HSE) has published its business plan for 2018/19, which sets out its work priorities for the coming year against a backdrop of a decrease in government funding from £142.6m in 2015/16 to £130.6m in 2018/19.

The HSE’s priorities include: a focus on reducing levels of occupational lung disease, musculoskeletal disorders and work-related stress; enabling the proportionate management of health and safety in SME’s; managing the regulatory framework as a consequence of Brexit; delivering 20,000 proactive inspections and a timely completion of investigations; and delivering targeted interventions on controlling risks from legionella, fairgrounds and major construction projects.

Revision of workplace exposure limits for 31 chemical substances

The HSE is proceeding with its proposals to introduce revised workplace exposure limits (WEL’s) for 31 hazardous chemical substances, through changes to its guidance. These revised WEL’s must be published by the HSE by 21 August 2018 in order for the UK government to comply with the implementation deadline of EU Council Directive 2017/164 concerning the protection of workers from risks related to chemical agents at work.

The HSE has pointed out that if businesses are currently compliant with the Control of Substances Hazardous to Health Regulations 2002, the additional costs associated with the revised WEL’s should be minimal.

In Focus: Brexit

Is any new EU legislation expected to come into force and effect before the end of the transition period?

EU Council Directive 2017/164 concerning the protection of workers from risks related to chemical agents at work is due to be implemented on 21 August 2018 (see above).

The European Commission still intends to amend the Workplace Directive (89/654/EC) to seek a more dynamic definition of the ‘workplace’ to reflect changes in modern working. However, no legislation has been proposed as yet.

Is a new regulator needed, or do additional powers to be given to an existing regulator?

Health and safety in the UK is regulated by UK regulatory authorities, including the HSE and local authorities. The legislation and regulations are also UK regulations (albeit some of them implement EU directives). A new regulator will therefore not be needed.

The HSE has started to introduce technical regulations under the new European Union (Withdrawal) Act 2018 to ensure retained EU law still functions effectively on exit.

The HSE will continue to act as the ‘competent authority’ so far as the enforcement of the EU Regulation on the  Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) is concerned. However, it remains to be seen whether the UK will be granted associate membership of the European Chemicals Agency after exit.

There is important liaison and know-how sharing with European organisations, as well as global organisations such as the International Labor Organisation, and it is hoped that this will continue in some form post-Brexit.

Is there an existing “equivalence” or “recognition” regime for recognising Third Country regulatory regimes?

No. Health and safety regulatory regimes are operated at a national level, so there is no mechanism for recognising Third Country regimes. Any business operating in the UK needs to comply with UK legislation and regulations, irrespective of where the business is located.

Does current UK government policy mean that (subject to the terms of a future trade agreement between the UK and the EU) material changes to regulation or enforcement are likely post-Brexit?

There is no indication at present that there will be any divergence between the UK health and safety regulatory regime and EU regulation post Brexit. However, there continues to be pressure by government to cut ‘red tape’ and therefore it could be that complex health and safety legislation that has derived from the EU may be looked at more closely in terms of its effectiveness.

What should businesses be doing now to prepare for Brexit?

We do not expect Brexit to have any significant impact on the health and safety regulatory regime in the UK so there is no need to businesses to adopt any new practices as such.

Dates for the Diary

September 2018 The Sentencing Council will publish its definitive guideline on the sentencing of manslaughter offences relating to individuals prosecuted of the offence, including gross negligence manslaughter in workplace accident scenarios. These are expected to come into force in December 2018.
End of 2018 The HSE will publish guidance for businesses on the proportionate implementation of ISO 45001, the international standard on occupational health and safety management systems that was published on 12 March 2018. This will include guidance on the sensible use of accreditation schemes.
31 March 2019 The HSE will publish revised guidance for employers by this date on the assessment and management of work-related mental ill-health.