Legal Update IOSH Bristol and West Branch 14

Legal Update IOSH – Bristol and West Branch 14 January 2021 Phil Newton, Associate

Agenda • • Building and Fire Safety Mental Health and ISO 45003 Brexit Inquests in H&S cases

BUILDING AND FIRE SAFETY

Building Safety Bill “This will be the biggest change to our building safety regime for 40 years” Robert Jenrick, Secretary of State for Housing, Communities and Local Government Key developments: • December 2017 – Hackitt Interim Report • May 2018 – Hackitt Final Report • December 2018 – Cladding Ban • August 2019 – updated Approved Document B

Reform of Building Control • Applies to all buildings • New role for HSE – Overseeing competence of inspectors – Updates to building regulations – Updates to approved documents • Enhanced enforcement powers • Increased penalties for non-compliance • Personal liability for directors and senior managers 5

New Building Safety Regime • Applies to Higher Risk Buildings – initially buildings with residential units and over 18 metres or more than 6 storeys (with some exceptions) • A new regulatory framework for fire and structural safety overseen by the Health and Safety Executive which will drive culture change and new behaviours • A clear model of risk ownership - clear responsibilities for Client, Designer, Contractor, Accountable Person and Building Safety Manager 6

Model for future enforcement • • Improvement/Correction Notices Prohibition Notices Withdrawal or conditions attached to building safety certificate Civil and criminal sanctions (prosecution): – Carrying out work without Gateway approval – Not applying for a building safety certificate – Non-compliance with certificate conditions • Extension of time bar for breach of building regs • Personal liability 7

Duty Holders During design/construction and refurbishment: • Aligned with CDM • Client, Principal Designer and Principal Contractor etc. • Over-arching duties to ensure building safety and to certify compliance with the Building Regulations During occupation: • New “accountable person” – usually the owner • An appointed building manager 8 Named directors where duty holders are organisations

Gateway System – Overview Gateways: Duty holders must demonstrate how they are ensuring building safety to gain approval of the new regulator to proceed to the next stage to development. • Gateway 1 – Before planning permission is granted • Gateway 2 – Before construction begins • Gateway 3 – Before occupation begins 9

‘Golden thread’ of information The Bill includes provisions that will help create a golden thread of information. The intention is to ensure that the right people have the right information at the right time to ensure buildings are safe and building safety risks are managed throughout the building’s lifecycle. This information will be held digitally and will ensure that the original design intent and any subsequent changes to the building are captured, preserved and used to support safety improvements. For new builds the duty holders must start to collect this information during the design and construction phase and then hand over to the Accountable Person. 10

Competence • Industry-led – gone full circle in construction terms • Individuals must have the appropriate skills, knowledge, experience and behaviours • Professional and trade bodies to create an overarching competence framework for anyone working on buildings in scope – See: “Setting the Bar Report” Oct 2020 • Appropriate level of fire and structural safety knowledge • Overseen by a separate, independent, stakeholder-led standards committee under auspices of the regulator 11

How to lead on building safety? Keep up to date with government building safety measures- sign up for updates. Be ahead of the curve, anticipate what is next and take action towards that sooner rather than later. 12 Engage with construction or industry bodies & guidance.

Fire Safety Bill Aims to amend and clarify the RRO The Responsible Person for multi-occupied, residential buildings must manage and reduce the risk of fire for the following: the structure and external walls of the building, including cladding, balconies and windows; 13 entrance doors to individual flats that open into common parts.

Fire Safety Bill (2) Also allows secondary legislation to implement recommendations from Grenfell Tower phase 1 report • Fire doors • Lifts • Signage • Fire service info – design and materials of external walls, plans, premises information boxes, • Evacuation plans, PEEPS, signals Further reform likely to clarify who the responsible person is and align fire safety and building safety - Consultation closed on 12 October 14

MENTAL HEALTH AND ISO 45003

Context • HSE Statistics 2019/20 – 17. 9 million working days lost due to work-related stress, depression or anxiety – 55% of all working days lost. – 828, 000 workers suffering from work-related stress, depression or anxiety (new or longstanding) – rate of 2, 440 per 100, 000 workers. • 2020 and ‘external’ factors – CV 19 – Economic recession – Social justice issues e. g. Black Lives Matter, climate change

Legal Obligations and Guidance Law • Section 2(1) of the Health and Safety at Work etc. Act 1974 • Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 • ‘Common law’ duty Guidance • HSE Management Standards, 2004

Implementation and Enforcement • Implementation of Management Standards – mixed • Reasons – Organisational inertia – Lack of resourcing – Lack of enforcement action by regulators – Not reportable under RIDDOR • Impact of CV 19 – Risk assessment and ‘Covid secure’ workplaces – Increased inspections?

ISO 45003 • What is it? “Occupational health and safety management — Psychological health and safety at work : managing psychosocial risks — Guidelines” • ISO 45003 v HSE Management Standards • Timing with CV 19

BREXIT

Brexit – impact on H&S? • Immediate impact – Some new rules and procedures e. g. placing chemicals, civil explosives and work equipment on the market – ‘Settled status’ of EU workers in the UK. Applications to be submitted by 30 June 2021. – EU-UK Trade and Cooperation Agreement • Long term impact – Divergence in laws over time? – Changing workforce profile? – Sectoral differences?

INQUESTS IN H&S CASES

R (Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46 • Decision – The standard of proof required for ‘unlawful killing’ and ‘suicide’ verdicts now the civil standard (i. e. on the balance of probabilities) and not the criminal standard (i. e. beyond all reasonable doubt). • Case History – Original inquest – could not be sure beyond reasonable doubt that M had tried to kill himself. – Appeal courts – civil standard for suicide verdicts, criminal standard for unlawful killing verdicts.

R (Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46 • Impact on H&S cases – Increase ‘seriousness’ of fatal incidents in workplace – Evidence relating to gross negligence or corporate manslaughter – Expanded scope and increased length of inquests – More lawyers and disparity between families and organisations • Comments – Underreporting of suicides – Prejudice on criminal proceedings?

Questions? Phil Newton 0207 667 7267 07717 451097 phil. newton@pinsentmasons. com

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