Regulatory Outlook

Regulatory Outlook | Health and safety | January 2021

Published on 13th Jan 2021

H_2011101743FWI_Regulatory Outlook 2021_JAN 21_ICONS_Health and Safety_landscape

Current issues

Fire Safety Bill: changes to scope of responsibility

The Fire Safety Bill amends the Regulatory Reform (Fire Safety) Order 2005 (FSO), to make explicit that it applies to a building’s structure, external walls (cladding and balconies) and individual flat entrance doors in multi-occupied residential buildings.

The Bill follows issues highlighted in the first phase of the Grenfell inquiry and seeks to close an area of ambiguity as to the scope of the FSO to these common parts. It also provides a platform for secondary legislation to implement recommendations from that inquiry.

This will have immediate implications for the Responsible Person under the FSO – usually the building owner being the party with control over fire safety. These will include an increase in the scope of building fire risk assessments as these will now have to include these common parts and any issues identified will have to be addressed. This clarification will also make it easier for Fire Authorities to bring enforcement action for non-compliance as they will be able to cite defects with these specific parts rather than relying on more general provisions regarding the fire safety of a building overall.

The Fire Safety Bill overlaps with the very detailed Building Safety Bill (see below) and marks a change to increase accountability, imposing statutory duties with clear criminal sanctions for non-compliance.

For more detail on the Fire Safety Bill and the other current issues set out in this section, see our Insight here.

Employer’s duty considerations for a home working workforce

As the pandemic continues, many businesses are looking at what they legally need to do to support their homeworking population so that their people remain healthy, comfortable and productive at work, and that claims risks are minimised. This is being done with one eye on the longer term, as businesses listen to increasing requests from their people to continue working from home after the pandemic restrictions end.

Employers have the same health and safety responsibilities for home workers as for any other workers although the lack of control over the working environment (as opposed to an office, for instance) can pose challenges and employers may look to existing guidance around lone working risk for more assistance.

Key risk areas are likely to be home office set up, lone working and mental ill-health. Employers will be expected to carry out a risk assessment to identify the risks for their specific homeworking population (and how they will be managed).

Management of mental ill-health risks and lone working will also need to be considered for a business’s homeworkers, including:

  • Communication and supervision.
  • Whether they are able to work safely including the support to make informed, safe decisions.
  • Monitoring of mental health, in particular the feelings of isolation and increased stress that a long term home working may create.

Businesses will find guidance around legal duties for employer mental health, risk assessment and guidance at HSE’s guidance on managing stress risks.

Building Safety Bill: New obligations for those with an interest in ‘high-risk’ residential properties

The Building Safety Bill will bring comprehensive change to the legislative framework for building safety. The government introduced the Bill as a “new era of accountability” providing clarity of responsibility for managing safety risks through the stages of planning and design, construction and occupation of buildings which fall within the scope of the legislation.

As a fundamental reform of the building safety system, the bill seeks to address the systematic issues identified in the review around building safety and regulation led by Dame Judith Hackitt following the Grenfell Tower fire. In particular, the bill proposes a more stringent regulatory regime for higher-risk buildings (currently defined as residential high rise premises over six floors or 18 metres in height).

Whilst the progress of the Bill is at an early stage and will also require secondary legislation to provide much of the detailed interpretation it is important that those with an interest in property begin to adapt their processes to more closely reflect what will become mandatory.

A significant amount of the detail remains to be determined, but it is very clear that there will be significantly more onerous obligations placed on those with an interest in residential property. As such keeping a close eye on the progress of this legislation and the associated guidance will be essential to avoid being caught on the back foot.

All inquest conclusions now determined on the balance of probabilities

Following a ruling in the UK Supreme Court (Maughan) the standard of proof required to reach the conclusion of “unlawful killing” in an inquest has changed. The civil standard of proof (on the balance of probabilities) will be applied to determine an inquest conclusion of “unlawful killing” instead of the criminal standard of proof – beyond reasonable doubt, which had existed up until now.

We consider that this change will mean that more inquests will now consider the elements of gross negligence or corporate manslaughter, in particular where the death occurred in the workplace.

Inquests should always be a matter of the utmost seriousness for employers where the death is linked to its workplace activities, but this shift in standard makes it even more important to engage early and seek legal advice. It is unfortunate that the effect of this ruling will be to lengthen and complicate some inquests, which goes against the overriding objective in recent years to make the process more efficient and cost effective.

UK safety statistics: fall in workplace fatalities, but still cause for concern

The overall UK fatality statistics produced by the HSE reflect a thankfully low and reducing number of workplace deaths (the number has almost halved in the last 20 years).

However, some industry sectors relative to their size and the all industry statistics are still recording a high number of fatalities. These statistics, as well as serving as sage reminder to duty holders to ensure safety, also direct the HSE as to where it places its investigative and enforcement resource.

The causes of fatalities have remained broadly the same for some time; falls from a height, being struck by a moving vehicle and being struck by a moving, including flying or falling, object continue as the three main causes of fatal injury, accounting for over half of all fatal injuries each year since at least 2001/02.

With the advance of technology incidents should be reducing, in particular where there are now useable alternatives to working at height and enhanced safety systems to ensure people and vehicles/moving parts are kept apart.

It is particularly important in these higher risk sectors that safety measures are continually briefed and enforced and not just left as a dormant reference in a policy or procedure.

In Focus: Regulation after Brexit

What do UK businesses trading in the EU need to do now that the Brexit transition period has ended?

The fundamental health and safety legislative framework within which business currently operate will not change. Employers must continue to focus on assessing and adequately controlling risk created by their activities.

There are some specific changes in areas such as product safety and the safety management of chemicals.

For example, UK REACH and the EU REACH regulations will now operate independently from each other. This means that whether supplying or purchasing relevant chemicals to and from the EU/EEA and the UK, businesses will need to ensure that the relevant duties are met under both pieces of legislation.

More generally businesses may no longer be able to rely on the body of EU standards to assess safety, they must see how these will be transposed domestically.

In the short term at least Brexit in may delay the entry of some products. Businesses must build sufficient supply chain resilience to cope so that safety is not compromised or operations need to be stopped altogether as because a safety measure, such as PPE is not available.

What do non-UK businesses trading in the UK need to do now that the transition period has ended?

As the seamless transfer of goods from the EU to the UK ends, businesses will need to look closely at any customs declarations for their products. In addition to declarations some products will need accompanying safety data or a special licence (for example for waste and hazardous chemicals). The HSE has issued some chemical industry specific guidance as this is the area of most significant change.

Which incoming EU laws should UK businesses be aware of, and is the UK likely to implement similar rules?

Businesses must review their roles in the EU and UK REACH systems, and their current supply chains. They will need to take certain actions to access the EU/EEA and UK markets. The existing REACH legislation is complex and the UK-EU divergence only adds to that complexity. However, at least in the short term it is not the requirements of the legislation that will change in terms of the categorisation of chemicals, but the registration process. The government has launched an online service Comply with UK REACH .

Are there any other areas where the UK regime might start to diverge from that of the EU? If so, what should businesses do to ensure they are prepared?

The separate legal systems mean scope for different safety standards over time. It will be much more complicated to keep on top of changes in two trading jurisdictions. This may result in additional staffing and professional advice costs, as well as extra time and effort to keep on top of the requirements under both systems.

Where UK businesses trade with the EU it is essential that advice is taken at an early stage to ensure that as part of a service or product development any specific additional EU requirements have been considered. Where the standing assumption, at least in the short term, may be that standards and guidance remain the same, business will face significant wasted costs and potential liability exposure if such assumptions are not carefully checked.

It is difficult to predict whether the UK’s ‘gold standard’ of health and safety will become diluted or indeed whether in comparison to the EU it may forge ahead. We anticipate it may vary by industry. For instance, the UK may set the safety agenda in offshore renewables but potentially lag behind the EU in terms of pharmaceuticals. However what is clear is that the scope of compliance for UK companies trading in Europe is only likely to grow over time.

Dates for the diary

Q2 2021

Fire Safety Bill expected to be enacted.

Q2 2021

Government consultation on review of Regulatory Reform (Fire Safety) Order 2005 to be published.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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