Take notice of notices!

Posted by Woods Whur | Regulatory

The operator of a wedding venue in Cheshire has recently been jailed for 20 months for breaching fire safety regulations.

The operator, Mr Mohammed Isaq, had previously been in trouble with the fire authorities in 2012 for a number of fire safety breaches and which he was required to take action and did not do so.

He received a fine of £23,815.00, but it would seem that this did not alter his attitude to fire safety and the regulatory authorities.

He fell foul of Cheshire Fire Service against recently when recently he failed to comply with a variety of notices served on him and the premises to improve fire safety arrangements.

As a result of his non-compliance he is now sentenced to 20 months in prison for these offences.

Whilst it could be argued that he was foolish to allow non-compliance to arise a second time and then when the breaches were pointed out, to do nothing about it, it also demonstrates the seriousness in which the Courts treat these matters.

A fire broke out at the premises in March and whilst no-one was injured, significant damage was caused. It could be argued that in addition to the prosecution, the premises and the revenue it generates have permanently or certainly temporarily been extinguished – pardon the pun!

As I have mentioned previously in other articles, the mind-set of a number of operators needs to change when dealing with regulators.

Enforcement action and court proceedings are not just reserved after a fall, trip, fire or fatality. Regulators, can and do, take action where simply a risk exists, which may never manifest itself into an injury or other obvious consequence.

The need to take prompt advice and action when notices are threatened or served is crucial in situations such as the one outlined above. Whilst experience shows that notices are not always served correctly, there needs to be prompt action taken to assess them and simply ignoring the importance of a notice, even if incorrect in part, or overall, is no solution to the problem.

In addition, one of the main factors that Courts take extremely seriously when sentencing offenders is their previous convictions and linked to that their safety record whether that be good or bad.

Therefore, if you are unlucky enough to have a conviction or there is evidence of non-compliance and you are subsequently prosecuted, this undoubtedly will effect whatever sentence the Court hands down. Our advice is clear. You should be unrelenting in ensuring compliance to avoid that conviction in the first instance and if you are unlucky to receive one, to redouble your efforts to prevent further convictions which may avoid you taking up residence in the next cell!

On 17 July 2016 at the Brackton Centre, part of NHS Oxley’s Foundation Trust, a healthcare assistant and a psychiatric nurse were attacked by a service user with a knife.

The Health and Safety Executive (HSE) investigated the NHS Trust following this incident which highlighted that there was no patient specific risk assessment identifying the risks posed by a patient and the measures required to control those risks prior to admission at the Centre.

Another issue that was identified by the HSE was that of the use of knives. The HSE found that staff members were entering and exiting the kitchen area several times whilst knives were in use and no instructions or control measures were put in place regarding them.

Due to the impact of the two employees that were stabbed, but also other employees that witness the incident, the NHS Trust was fined £300,000 and ordered to pay costs of £28,000.00 after pleading guilty to breaching section 2 sub section 1 and section 3 sub section 1 of the Health and Safety At Work Act.

Although this case concerned an NHS Trust, the comments of the Judge in sentencing are applicable to many other types of business. In particular, this is relevant for those employers that may have employees engaged as a lone worker. There are always a number of risks involved when employing staff and a risk assessment should be carried out at the suitable time to identify any risks that may be present. A lone working policy is essential should employers find themselves in circumstances that employees may not have other colleagues/managers around them when carrying out their duties as an employee.

It is important for all employers to determine the level of safety of operations by way of completing a suitable risk assessment for the action that is required by the employee. This not only allows for consistent record keeping, but also can be used as an effective training tool for the employees to recognise the available risks and the conduct of the actions required from them.

If you want to discuss this further or have any queries in relation to employee safety, then please contact James Thompson or Sarah Frow on 0113 234 3055 or james@woodswhur.co.uk / sfrow@woodswhur.co.uk.

2018 has seen two important rulings in respect of legal privilege as the Courts continue to interpret the scope of legal professional advice privilege and litigation privilege.

Litigation privilege applies where a document is created for the purpose of obtaining information or advice. The most recent ruling from the Court of Appeal concern West Ham Football Club and E20 (the Landlord of the Club’s Olympic stadium home). E20 claimed privilege over a number of emails exchanged between board members and stakeholders.

The Court of Appeal noted that the sole ground upon which privilege was being asserted by E20 was that the emails were created with the dominant purpose of discussing a commercial settlement of the dispute in litigation with West Ham was in contemplation. The ruling states that such “purely commercial discussions” could not be protected by privilege.

This ruling serves a reminder that organisations should be cautious when internal documents are created before or during litigation.

The latest figures released by the Health and Safety Executive show that based on their provisional data, the HSE have recorded a 144 persons dying in workplace accidents in 2017/2018 period. In addition to this, 33 members of the public were killed by workplace activities during the same period.

The figures show that there has been an increase on the previous year from 135 deaths and whilst the HSE will seek to reassure us this is an increase that could be dealt with by statistical variances, it may also be something more troubling.

The figures show that the longstanding downward trend which began in 1981 where 495 persons were killed at work has levelled off. In fact the number of deaths has remained broadly flat for some time and now we have an increase.

The development has always been of concern to those who regulate health and safety in the UK. Their strategies of recent years have been designed to ensure the current plateau of deaths does not turn into an upward trend.

Is there anything behind these statistics that we need to worry about?

Does it perhaps suggest that the strategies and campaigns to reduce the number of fatal accidents are no longer valid, is there an increased acceptance by those in the workplace that health and safety arrangements are accepted and complied with on paper and perhaps not in practice, or is it simply that as activity in the economy increases from the days of recession the chance of more accidents increase based on that increased activity?

The answer may be a combination of one or more of these, or some other unknown factor or factors. However, the simple truth is that organisations are still exposed to the possibility that one of their workers could be killed whilst at work or a member of the public affected by their activities could die as a result of them.

Those of you who are playing the odds may still think there are good chances that an organisation will not be affected by fatal accidents. However, these tragic events do befall organisations on a daily basis and without a comprehensive system of health and safety arrangements, organisations have no hope of not just of preventing an accident in the first instance, but certainly not defeating any criminal prosecution or civil proceedings that may well follow it.

If cynically, we accept that you can never remove the possibility of all accidents and some of them becoming fatal accidents, then the idea is that an organisation and those managing it must do all that they can to ensure that their systems protect themselves and the organisation from the inevitable scrutiny that follows such an accident and/or death.

Of course, organisations can exist in the most dangerous field of activities for decades without any issue, unfortunately with the consequences of conviction for corporate manslaughter meaning fines running into the millions or terms of imprisonment for individuals who own and/or manage organisations, I would not be advocating reliance on the law probability as your best defence as opposed to a well-constructed health and safety management system!

£100,000 or 10 minutes?

Posted by Woods Whur | Regulatory

Colchester Borough Council brought a prosecution against Stonegate Pub Company following an investigation that found a cellar door was found to be defective.

Stonegate Pub Company pleaded guilty to breaching the Health and Safety at Work Act and, in addition to fine mentioned above, were ordered to pay costs of £3,792.00.

This incident again highlights the importance of being pro-active when it comes to health and safety.

Colchester Borough Council investigation revealed that the goods delivery to the premises had not been risk assessed. Simple, routine and regular tasks such as deliveries need to be assessed.

It is so important that any risk is assessed accordingly to protect the safety of both customers and employees of an organisation.  The advisors consequence are fines such as this why risk a fine when 10 minutes of your time could make the difference between compliance or court.

If you are not sure of your responsibilities, then speak with James or Sarah on 0113 34 3055 / james@woodswhur.co.uk / sfrow@woodswhur.co.uk

Already, post Grenfell, there has been millions of words written and spoken about the necessary changes required to make people safer from the risk of fire, particularly where they live.

The Government announced in December that they intend to implement the recommendations of Dame Judith Hackett’s review into Building Regulations, with particular regard to fire safety.

A little known part of the Government’s position on fire safety goes beyond changes for high rise residential buildings. The Government accepts that now the same changes are perhaps desirable in other buildings which are primarily not residential, but have the ability to create multiple deaths/injuries should a fire occur.

Whilst a number of different types of premises spring to mind from schools and hospitals to stadiums and shopping centres, other places of entertainment surely would fit within this scope.

It is therefore a distinct possibility that the changes we are seeing effecting high rise buildings in the residential sector will be equally applicable to other “high risk” buildings.

We may also seem a move away from “self certification” of a premises of it’s fire safety arrangements contained in the fire risk assessment, to the previous state of affairs where a Fire and Rescue service issue a certificate, warranting the safety arrangements of a particular premises.

The potential change away from self-regulation to inspection and certification, certainly is in keeping with the changing style of the fire and rescue authorities post Grenfell. Just from my own personal experience, I have seen much more activity by Fire and Rescue services, in terms of enforcement since the disaster.

A number of clients face significant prosecutions in an area where the emotions generated sometimes make it difficult for clients to have a fair and proportionate hearing.

Woods Whur’s regulatory team will explore this topic in more detail at our forthcoming seminar and hopefully you will be able to join us to continue the debate on what is a proportionate way of maintaining safety in an area where getting it wrong has all too well known consequences.

The recent trial, and subsequent imprisonment, of a husband and wife who operated a bouncy castle at an event that led to the death of a young child have highlighted the risks when you allow third parties to operate events or attractions on your premises. Whether it is something that you do free of charge to your customers to draw them in, or as a way of generating venue in its own right, the risks are still the same.

There is a great temptation, when paying for someone to come on to your premises to run an attraction or an event, simply to allow whoever it is to run the activity as they see fit. However, just paying their fee does not absolve you of responsibility, should the attraction cause injury or worse, or indeed if the persons delivering the event themselves are injured.

The tragic case mentioned at the beginning of this article demonstrates that attributing blame to those who operate the attraction does not absolve those whose premises it is from exercising some due diligence.

When booking entertainers, attractions or anything of that type, you need fully to understand the risks associated with any activity, no matter how benign you think the act or attraction is.

You should check that the performer or entertainer has risk assessments in place for the activity and that any equipment that they bring to the premises is well maintained and suitable.

While on your premises, they should be aware of your health and safety arrangements, and these should be brought formally to their attention. In addition, documentation should be created to show that they are aware of what you require and the standards that you maintain.

While those persons are on your premises, you have an obligation to keep them safe, together with carrying on oversight of what they are doing, to ensure that those affected by their actions are also protected. This entails robust supervision of what they are doing and how they are doing it. If your standards are not met, there should be prompt intervention to resolve the issue or stop it.

A number of clients over the years have been prosecuted for accidents and injuries where they themselves played no active part other than acquiescing and allowing their premises to be used for a particular activity.

Such a “hands-off” approach will not absolve you of blame, either in the criminal or civil courts. An active risk-assessment and ongoing management of who you have let on to your premises has to take place to prevent the type of accident that will, not only bring criminal prosecutions and civil proceedings, but also have a lasting and overwhelming, brand-damaging impact on your business.

For those of you following the Grenfell Tower inquiry, you may have noticed an about-face by the Government about who presides over it.

The retired Lord Justice of Appeal, Sir Martin Moore-Bick, was appointed as the Chairman, but he now seems not to be able to undertake the role alone.

After initially opposing the introduction of other panel members alongside the Chairman, the Prime Minister has recently changed her position and has indicated that two panel members will be appointed to examine the cultural and community reasons behind the fire.

It is fair to say that this has been a direct result of pressure applied by survivors and the families of the victims, together with local community groups, a petition signed by over 156,000 people and other self-appointed interested parties connected with the disaster.

Whilst it is cornerstone of the judicial system in this country that the citizen is heavily involved, from jurors to lay magistrates to councillors, they all operate in a system which is designed to be fair and transparent and in which decisions are reached through an assessment of the relevant evidence.

Whilst the appointment of the two panel members to the inquiry could be seen as relatively innocuous, it could be seen as the start of a “slippery slope” regarding the involvement in inquires, hearings and similar, where political pressure forces changes to well-established processes, whether it be a public inquiry into a disaster or a Local Authority Committee deciding on a Premises Licence.

We have to guard very carefully against the unwarranted intrusion of those with their own agenda, despite how noble or well-intentioned they are. It should not interfere with the correct and proportionate assessment of evidence leading to a just and fair conclusion/decision.

When a Senior Appeal Court Judge of 20 years’ experience is deemed by community groups not to be able to call and martial, as well as assess, evidence, and reach findings without “interested” persons being involved, then in my view it sets a dangerous precedent for any hearing dealing with emotive issues, whether they are the deaths of 71 people or the grant of a licence in an area which is already crowded with licensed premises.

Opinions and viewpoints are always welcome in the process, but they must always be considered as submissions to be considered by the Court, hearing, tribunal or committee. It is a dangerous step when those that have a vested interest suddenly become the judges themselves.

Data Day is Dawning…

Posted by Woods Whur | GDPR, Regulatory

You are no doubt aware about it, received various emails from online retailers regarding it and been asked to update your social media profiles concerning it, but what exactly are the new General Data Protection Regulations (GDPR) about?

James Thompson, Woods Whur’s Head of Regulatory, looks at the key aspects of the GDPR on the dawn of its implementation on 25 May 2018.

In short, the GDPR applies to both “data controllers” and “data processors”, the former terms retain their same broad definitions adopted from the Data Protection Act 1998 (DPA), and relates to “personal data” and “sensitive personal data”. The DPA too will be replaced by a new Data Protection Act which is currently passing through parliament.

In order to process personal data, the processing action must be a lawful act, and the issue of consent to process personal data is an important consideration.

Under GDPR, where consent is required, it must be “be given, specific, informed and an unambiguous indication of the individual’s wishes” in other words a clear intention of the party to affirm the agreement to consent to their personal information being used. Consent cannot be implied, inferred from silence or relied on from a pre ticked box on a form. However, don’t panic, consent is not required on all occasions. Data controllers do not require consent if the action relates to other lawful activities, such as where the processing is required to comply with a legal obligation or to take steps to enter/perform a contract.

What is also significant is the increase in the penalties that can be handed out to non-compliant organisations. It is vital to comply with the GDPR to avoid a fine of €20 million (circa £17.5 million) or 4% of the company’s global annual turnover of the previous financial year, whichever is higher.

In addition to the above, the GDPR has made other key changes to individual’s rights under data protection laws, it has increased accountability placed on the data controller and given individuals a greater say in how their personal data is used.

If you are reading this and you have not yet updated your policies to comply with the GDPR or would like advice on the GDPR and how it could affect you or your business, then please get in contact with us and we will be happy to assist.

James@woodswhur.co.uk

0113 234 3055

We would like to pass on our thanks to Simon Thomas for letting us use the auditorium in the Hippodrome Casino and also to our external speakers, Philip Kolvin QC, Ben Haden from the Gambling Commission and Kerry Simpkin from Westminster Council.

We had a fantastic mixed audience from all parts of the gambling industry – online, traditional land based betting and casino operators, bingo operators, the Lotteries sector – a broad spectrum of clients and also representatives of a number of licensing authorities.

Philip Kolvin opened up our conference and gave a fantastic presentation on risk.  A significant number of delegates commented during the break how thought-provoking this was. Philip was followed by Andy who dealt with review of recent cases and issues. There are some significant cases of note in Gambling Law as the Regulator has definitely sharpened its focus of dealing with problem operators.

James Thompson, the Head of our Regulatory team then looked at the significant issues of the sentencing guidelines changing on prosecutions for regulatory breaches, and also some very topical issues in relation to data protection and the changes in legislation. Big thanks to James who had to leave home in Newcastle at 3.30 in the morning so as to get to London to deliver his presentation.

Anna Mathias gave the audience her lotteries update which came with perfect timing, as she has just been appointed to the Board of the Lotteries Commission for Great Britain.  The lotteries operators in the audience found her update particularly interesting and pertinent to their sector.  We are very proud that she now sits on the Board of such an important and worthwhile organisation.

In the second half of the conference we had Ben Haden from the Gambling Commission who gave a very interesting insight into the national policy being promoted by the Gambling Commission in 2018. Some interesting changes of focus can be seen in his presentation as the direction of travel for the GC starts to change.

After Ben gave us the national picture, Kerry Simpkin highlighted the Gambling perspective from Westminster Council, explaining what their Licensing Authority expects to see in terms of risk assessment and how their new statement of licensing policy is going from 60 to 353 pages.

Andy and Anna brought the conference to a close with a compliance, regulation and challenges presentation.  This gave the audience a good understanding of some of the regulatory impacts that are challenging  and will further challenge the gambling sector.

We thoroughly enjoyed the day and in particular, the questions and issues raised by delegates in my wrap up session.

If you would like a copy of any of the materials used at the conference, please email sarah@woodswhur.co.uk, who will be happy to assist.

If there are any questions from those who attended the seminar or those who unfortunately could not attend, then Andy, Anna, James and myself would be delighted to deal with those direct enquiries.

Paddy Whur