Health and Safety Legal Update IOSH North East of Scotland

Transcription

1 Health and Safety Legal Update IOSH North East of Scotland Presented by Kevin Clancy 7 October 2015

2 Speaker Kevin Clancy Associate, Commercial Disputes and Regulation T: E: Kevin joined Shepherd and Wedderburn in 2006 and has experience in advising public and private sector clients in civil and criminal proceedings in a range of disputes including breaches of health and safety legislation, licensing issues, and regulatory offences. Kevin is also a solicitor-advocate with civil rights of audience. 7 October 2015 Health and Safety Legal Update 2

3 Summary Health and Safety over the last 12 months Legislative developments Enforcement Recent case law 7 October 2015 Health and Safety Legal Update 3

4 Where are we now? The health and safety landscape in Scotland Post-referendum? Devolution (Further Powers) Committee Health and Safety at Work etc Act 1974 An improving culture of safety HSE Statistics for 2013/ fatalities (down from 150) 80,000 other injuries to employees reported under RIDDOR 674 prosecutions (35 in Scotland, up from 26) 13,790 enforcement notices 7 October 2015 Health and Safety Legal Update 4

5 Current Developments (1) Update from last year s seminar 2 consultations have resulted in published Codes of Practice and guidance Safe Work in Confined Spaces (published: December 2014) Safe Use of Lifting Equipment (published: December 2014) 7 October 2015 Health and Safety Legal Update 5

6 Current Developments (2) Consultation: Consultation on Recast of the Placing on the Market and Supervision of Explosives for Civil Uses Directive (93/15/EEC) Closed: 29 September 2015 UK implementation of 9 EU directives for product harmonisation legislation New Fatal Accident Enquiry Bill Introduced to Scottish Parliament: 20 March 2015 At Stage 1, with evidence taken in June October 2015 Health and Safety Legal Update 6

7 Legislative Changes Construction (Design and Management) Regulations 2015 Also: Deregulation Act 2015 Control of Major Accident Hazards Regulations 2015 The Offshore Installations (Offshore Safety Directive) (Safety Cases etc) Regulations 2015 Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations October 2015 Health and Safety Legal Update 7

8 CDM Regulations 2015 Entered into force on 6 April 2015 (simplification of 2007 Regs) Easier format for smaller constructions projects CDM Co-ordinator now Principal Designer (by 6 October 2015 for existing projects) Appointment of Principal Designer and Principal Contractor Construction phase plan required Notification requirements Training and supervision requirements 7 October 2015 Health and Safety Legal Update 8

9 Deregulation Act 2015 Entered into force on 26 March 2015 Reduction of legislative and regulatory burdens Repealing legislation that has no practical use General duty of self-employed persons see later slide Requirements to wear safety helmets Regulation of the use of roads and railways Poisons and explosives 7 October 2015 Health and Safety Legal Update 9

10 Hazard Regulations Control of Major Accident Hazards Regulations 2015 (1 June 2015) Guidance has been published For operators, emergency planners and other COMAH duty holders Many familiar duties from 1999 Regs But with some new or changed duties The Offshore Installations (Offshore Safety Directive) (Safety Case etc) Regulations 2015 (19 July 2015) Guidance has been published (second draft) Applies to oil and gas operations in external waters Primary aim: reduction of risks from major accident hazards Protection of marine environment and coastal economies 7 October 2015 Health and Safety Legal Update 10

11 Self-Employed Persons (1) Health and Safety at Work etc Act 1974 (General Duties of Self- Employed Persons) (Prescribed Undertakings) Regulations 2015 Entered into force on 1 October 2015 Changes due to the Deregulation Act 2015 Only self-employed people who conduct certain work (or have employees) will have health and safety duties Section 3, 1974 Act: duty applies to every self-employed person who conducts an undertaking of a prescribed description 7 October 2015 Health and Safety Legal Update 11

12 Self Employed Persons (2) 2015 Regulations set out a prescribed undertaking: Agriculture Asbestos Construction Gas Genetically Modified Organisms Railways OR, where not listed in the Schedule, IF an activity may pose a risk to the health and safety of another person Otherwise, self-employed persons are exempted from the scope of section 3 of the 1974 Act 7 October 2015 Health and Safety Legal Update 12

13 Enforcement Unlimited sentencing powers in the Magistrates Court (12 March 2015) Tougher sentencing guidelines proposed for England and Wales (proposed November 2015) Continued enforcement by dedicated Health and Safety Division within Crown Office 7 October 2015 Health and Safety Legal Update 13

14 Enforcement There are few places which understand the importance of strong health and safety measures better than the North East of Scotland where many people earn a living in high risk environments like agriculture, fishing, construction and offshore oil exploration and exploitation. These industries can be safely and properly operated, as many employers show on a daily basis. We decided to hold our Health and Safety conference in Aberdeen to send a strong message to those employers who are not so diligent. If they fail in their duties to their employees, and to others, those failings will be robustly investigated and they will require to face the consequences. Gary Aitken, Head of Health and Safety (published 25 September 2015, COPFS website) 7 October 2015 Health and Safety Legal Update 14

15 Case Law (1) Her Majesty s Advocate v Clydeport Operations Limited, 29 September 2014 Flying Phantom case Tug boat capsized in thick fog, killing 3 people Tug boat operator (Svitzer Marine) had previously pled guilty Clydeport is the Harbour Authority for the River Clyde Charge related to Clydeport s failure to adequately assess risks and provide a safe system of work (not that Clydeport was the cause of the incident) Contraventions of section 3 and 33 of the 1974 Act Fine: 650,000 (guilty plea) 7 October 2015 Health and Safety Legal Update 15

16 Case Law (2) R v Thames Water Utilities Limited [2015] EWCA Crim 960 Environmental offence Appeal against level of pollution fine ( 250,000) Court of Appeal agreed that fines are currently too lenient Appeal dismissed Indeed, COA would have had no hesitation in upholding a higher level of fine Potential implications for health and safety New Sentencing Guidelines anticipated in November 2015 Ensuring proportionate sentencing 7 October 2015 Health and Safety Legal Update 16

17 Case Law (3) Siemens Windpower A/S and Fluor Ltd, Chelmsford Crown Court, 2 October 2015 Offshore Windfarm in May 2010 One worker killed and another seriously injured during construction Wind turbine blades being loaded onto a sea barge for delivery Part of the blade transport arrangement fell off Workers employed by SWP but were working for Fluor, the principal contractor HSE investigation identified serious failings in the system for the loading operation Fluor: 275,000 fine and 271,048 costs SWP: 375,000 fine and 105,355 costs 7 October 2015 Health and Safety Legal Update 17

18 Case Law (4) Extra Access Limited, Hamilton Sheriff Court, 31 July 2015 Glasgow scaffolding company fined after roof worker fell 6 metres to his death Scaffold deck was found to be in a bad state of repair A failure to provide safe and suitable working equipment Had the scaffolding been properly inspected, maintained, or taken out of service, the accident was entirely avoidable EAL pled guilty to a breach of section 3 of the 1974 Act 40,000 fine imposed 7 October 2015 Health and Safety Legal Update 18

19 Case Law (5) Petroineos Manufacturing Scotland Limited, Falkirk Sheriff Court, 13 August 2015 Operators of Grangemouth Oil Refinery Cleaning operation on a vent pipe Sprayed in the face by low pressure steam Employee was wearing protective equipment Left injured and disorientated A failure to risk assess the potential hazard of the discharge of steam directly towards an operator Petroineos pled guilty to a breach of the Provision and Use of Work Equipment Regulations 1998 and section 33 of the 1974 Act 24,000 fine imposed 7 October 2015 Health and Safety Legal Update 19

20 Investigations and Corporate Crime webinar series Private Prosecutions: When a Regulatory Inspector Comes Calling: Dawn Raids (29 October 2015) Crisis Management and Social Media (26 November 2015) 7 October 2015 Health and Safety Legal Update 20

21 Questions & Answers Image Flickr.com: Jilligan86 7 October 2015 Health and Safety Legal Update 21

22 London Condor House 10 St. Paul s Churchyard London EC4M 8AL T +44(0) F +44(0) Edinburgh 1 Exchange Crescent Conference Square Edinburgh EH3 8UL T +44(0) F +44(0) Glasgow 191 West George Street Glasgow G2 2LB T +44(0) F +44(0) Aberdeen 1 Berry Street Aberdeen AB25 1HF T +44(0) F +44(0)