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

The wealth of legislation, guidance, codes of practice and other red tape can seem insurmountable at times.

The significant increase in financial penalties for health & safety, food safety and other regulatory matters only adds to the worry of a failure in any of these areas.

Our long standing experience of representing clients through regulatory problems has allowed us to identify the reoccurring issues where our clients fall foul of the regulatory authorities or in civil claims.

No matter what the size or breadth of your operations, the standards are the same and the need to comply does not vary due to size, location, profitability or any other factor.

James Thompson, our Head of Regulatory, has through many years of experience, seen a wealth of issues facing clients, but there are some which constantly recur time and time again.  Clients are well advised to think about them when conducting their day to day business.

James’ top 10 problems for businesses are

1. Asbestos management.

The obligations on you if owning or controlling premises are stringent in terms of managing asbestos.  It is not enough just to assume there is no asbestos in a premises that you own, let or in some way control.  There has to be a positive assessment of the building for asbestos and if identified, the asbestos in situ managed, and the information regarding its location and condition shared with those who may come into contact with it.

Whether you are refurbishing premises, or simply operating from them, a proactive approach has to be taken.  Even without the risk of a disturbance/exposure, the absence to manage will attract criminal penalties and certainly if anyone is exposed to it, civil claims will undoubtedly follow.  The aftermath of any exposure triggers a number of responsibilities which you must act on quickly to minimise your criminal and civil liabilities

2. Fire safety

The Grenfell Tower disaster has brought fire safety well in to the public’s thoughts and not withstanding any subsequent changes to fire safety legislation, the need to comply with all the obligations, is as important as it ever has been.

The cornerstone to any successful defence or proceedings for fire safety breaches is a comprehensive and an appropriate fire risk assessment together with training and monitoring arrangements.  The fire service will look to this document as a starting point to discover your arrangements in terms of fire safety and satisfying them on this goes a significant way to satisfying them on any other concerns that they have.

Ensuring that this is in place and making sure that it is implemented are key to compliance in this area

3. Waste management/fly tipping

Just because you don’t operate a landfill site, a recycling plant or deal with packaging waste by the hundreds/thousands of tonnes does not mean that this area of regulation escapes you.

The simple act of putting waste bins out for collection too early for your collection arrangements could attract a fixed penalty notice or fine.  Simple breaches such as this can attract enforcement notices which compel you to make particular waste disposal arrangements which could be costly in lots of ways to the business.

It is sometimes overlooked by businesses, that the obligations you have for waste management are incumbent on you, it is important to avoid prosecution and simply relying on a waste management contractor is not enough, to protect you.

4. Fatal accidents/inquests

This is the area where individuals and their businesses can experience the most terrifying experience in all their years in business.  The death of an employee or a third party attracts the attention not only of the Police, Health And Safety Executive or local authority, as well as the Coroner, but civil claims, media attention and your workforce.

Successfully managing all of these different groups and organisations, all with conflicting potential agendas, can seem overwhelming.  Ensuring access to specialist advice is crucial in protecting you and your business against a situation that could last for many years, with significant consequences to all concerned.

5. Food safety

Whether you are a manufacturer, retailer or involved in its preparation, all elements of food safety have the potential, if they go wrong, to fatally damage your business.

The need for a robust system of training and procedures to ensure the integrity of the food that you produce, serve and sell is critical, in addition to effective supervision.

If the worst happens and you are investigated or prosecuted, we can help you and have successfully defeated a number of prosecutions, particularly where clients have been able to demonstrate that their systems are sufficient, but individual employees have failed to carry out what the client’s systems and training requires.

6. Notices

Notices, whether they are Improvement, Prohibition, Food Hygiene, Waste Management or Fire Safety, are a significant “sanction” in the hands of a regulator.  Unfortunately,  on a number of occasions, clients do not recognise their importance until potentially they are too late.

These notices can restrict and in some cases, end businesses when they are widely drafted, vague and too restrictive.  It is essential to ensure notices, where they cannot be complied with or are unreasonable, are appealed and defeated or varied to make them more proportionate.

We regularly assist clients in this process and prompt action upon receipt of any notices is essential to prevent the consequences of an ill-judged notice.

7. Contractor Management

Despite all of the safeguards, training and procedures you can develop and implement for your own employees, how sure are you that any contractors you engage are similarly responsible?

Regularly, we see prosecution of clients where their contractors have let them down, and in so doing, have attracted a prosecution.

Ensuring clear demarcations of what contractors should be undertaking on a task and what you will be undertaking are important to ensuring that in the event of an accident the responsibility and in some circumstances the blame, can be apportioned correctly.

Carrying out the appropriate due diligence before appointing contractors and vetting their documentation are equally as important and unfortunately on many occasions, overlooked.

Making sure you have the most appropriate contractor to undertake the role is vital and we can help in the due diligence process and making sure that all parties know what their responsibilities are.

8. Regulatory Visits

Unfortunately, time and again clients suffer investigation and prosecution due to their employees not recognising the importance of prompt and effective action when they are subject to a regulatory visit.  Regularly, inspectors call at premises and are not treated with the importance that their presence requires.  The absence of documentation on site for inspection, examples of poor practice and staff who are unclear on their duties and responsibilities all can trigger an investigation and prosecution.

It is essential to ensure that all staff know the powers of the regulators that could call, what they can and can’t do and how to deal with them.

The reassurance an employee can give to inspectors in the initial few minutes of a visit, can be a difference between a prosecution and not.  We can help train staff on what they should and shouldn’t be doing, as well as provide checklists and other documentation to assist on how to deal with visits and what potentially can develop from them.

9. Preventing Claims – Accident Investigation

Experience has shown that prompt investigation of all accidents and near misses is a powerful deterrent to personal injury claims, it can also defeat criminal prosecutions.  Where accidents are not investigated promptly and thoroughly, they allow employees potentially to exploit this in claims, which insurers or you  cannot defend and the same is true of customers and other third parties.

If there is no investigation then simply in most cases this means that the Claimant or Prosecution’s version of events is accepted if you can do nothing to challenge it.  We have helped clients over a number of years create efficient and comprehensive, but simple accident investigation protocols, assisted with investigations ourselves and this has translated into the successful defence of claims and prosecutions.

10. Documentation and Systems

Without the relevant documentation and systems to demonstrate legal compliance, we have seen that clients are doomed to continually have to settle claims and the associated increased premiums that brings or pay large fines in Court for failings.  Had appropriate systems existed it could have demonstrated a vindication of a client’s actions or mitigate the amount of costs, damages or fines paid.

The need to constantly review your documentation and systems is essential to achieve compliance, but all too often it is overlooked at a client’s cost.

We have helped prepared and implement procedures and systems than can protect your business whatever the problem could be.

Two recent instructions by clients concerning exposure of their employees and contractors to asbestos has prompted me to discuss the issue in this edition.

Although the use of asbestos has been prohibited for a number of years in building and refurbishment works, it is still present in a vast number of premises across the country. Even premises which you consider to be relatively modern may well still present hidden dangers from asbestos.

Whether you own a building, are a tenant or, indeed, have some degree of control over a building without any form of contract or agreement, you will be deemed to have a duty under the relevant asbestos regulations. This means that you have an obligation to manage the threat from asbestos within the premises. Depending on the degree of control you have, this will cover all non-domestic premises and the common areas of domestic premises, such as halls and stairways.

I am constantly asked by clients about asbestos-related problems that can arise, particularly during refurbishment works. If you sublet a premises to a tenant who then carries out some refurbishment works or you carry out works yourself, there is a duty to cooperate with all the parties involved.

Normally, as the person owning or controlling a premises is best placed to understand what asbestos is present, there is an obligation on that person to share that information with those who potentially may come into contact with it, be that tenants or contractors or anyone else.

The law is quite clear on what you should you do: find out if there is asbestos in your premises and, if in doubt, make an assumption that some materials within the premises may contain it, in the absence of evidence to the contrary.

You also need to keep an up-to-date record of the location and condition of asbestos in the premises and assess the risk from it. This will allow you to prepare a plan on how you intend to manage that risk and then put that management plan into action.

In reality, it may be that if the asbestos is in good condition and is in an area that is confined, such as a locked room, that may be sufficient to manage the risk. If the asbestos is deteriorating, however, it may be that you need to secure the services of a licensed contractor to remove it or in some way manage it to prevent further deterioration.

No matter what steps you take, these need to be recorded and reviewed regularly.

Generally speaking, the best way to ensure that you are compliant is to commission a competent asbestos surveyor to produce a survey of your premises which confirms the presence or absence of asbestos-containing materials. Such a survey would effectively form the foundation of your management plan and any actions that will flow from it.

When you are commissioning work or allowing work to take place, you should share the survey and any other information that you have regarding the presence of asbestos and its condition with those who could be affected by it.

Importantly, you must always maintain a record of who you share information with and what information has been shared, to prevent any issues in the future whereby contractors or others deny being made aware of asbestos within your premises.

Clients are regularly caught out by their duty to manage asbestos and, as a result, expose themselves to civil claims by all those potentially affected by an exposure to the material, as well as prosecution for failures under the relevant regulations.

Don’t just assume that your premises does not have asbestos in it. You need to take positive action to check, to record what you find and plan accordingly.

Don’t let the first time you identify asbestos in one of your premises be when an employee or contractor is exposed to it, and you are faced with the consequences of this.

As those of you who have been reading my commentary on the sentencing guidelines since their introduction will know, there has been a significant rise in the fines handed down by the Courts since the guidelines came in two years ago.

In effect, the guidelines set a tariff for the Courts to follow when dealing with offenders under health and safety, corporate manslaughter and food safety legislation.

Recently released figures show that, in the period 2015/2016 before the guidelines came into effect, total fines imposed were £38.8 million.

Contrasting this with the first full year when the guidelines were in operation, a rise in fines to £69.9 million occurred.

This gives an average fine per offence of £126,000. In order to put that into context, when I started practising in this area, the average fine for a health and safety offence nationally ranged between £5,000 and £7,000.

Whether you operate in the private or public sector, whether you are a small or a large organisation and whether you are prosecuted because someone is injured or killed or where just a risk exists and no injury has been caused, the fine levels are significant.

I know I am in danger of repeating myself, but you cannot prepare and protect yourself enough in terms of health and safety as well as food safety.

Take expert advice, review your documentation, police your systems and record the results. The best way to prevent having to pay a significant fine is ensuring that you never have an accident or risk in the first place. There is no fool-proof solution, but robust systems, equally robustly policed are your best defence.

You may consider this subject to be trivial, irrelevant or not worthy of consideration – or perhaps all three!

However, a recent case against the discount store, Pound Stretcher, might force you to take a different view about keeping store rooms and other areas uncluttered, walkways unimpeded and other exits free to use. After an unannounced visit by local authority officers at one of its stores in Swindon, a number of issues were identified in relation to chaotic arrangements and grossly overstocked storerooms. The investigating authority found aisles and walkways, as well as fire exits, blocked, and staff not trained to the appropriate standards. As is typical in local authority investigations commenced by one local council, their findings and potential concerns were circulated nationally. In this case, other interventions followed, with further unannounced visits carried out by local authorities in Berkshire and East Sussex, where similar issues were discovered. All three cases led to prosecutions.

All three sets of proceedings were dealt in December of last year and the company was fined over a £1,000,000 in total for the offences. Quite tellingly in the sentencing Judge’s remarks was the observation that to “blame the local management is not only deeply unattractive…but quite unfair”.

Whilst the size of Pound Stretcher undoubtedly affected the size of the fine, it is worthy of note that such a significant penalty was imposed by the Court, regardless of the facts that no accident had occurred and neither had any harm had been caused to anyone.

I will leave it to you to assess how the Courts would have dealt with the situation, should have there been a fire or other accident.

Whilst you may have considered, when you started to read this, the tidiness of your back-of-house areas, including stockroom or cellar, to be incidental to your operation (and, let’s be honest a bit of a distraction), I would like to hope that the case of Pound Stretcher reinforces the need for your premises to be kept in good order, tidy and free from obstructions if you want to avoid what is a eye-watering financial penalty for a state of affairs which can all too easily occur in any premises.

It may come as a surprise to many that the common medical condition that now keeps most workers away from work is not as was previously and consistently shown as that of muscular-skeletal disorders – or as we would call it, having a bad back! This has been replaced by mental health issues such as anxiety, stress and depression.

It may be difficult for many of us to accept that the mental health problems that our employees face outside of work and even inside work, could be our responsibility to deal with whilst in work.

The law makes it clear that we have an obligation to keep our employees and to a certain extent others, safe in the workplace.

Traditionally, this has been seen as keeping them free from harm of a physical nature.

However, employers need to act reasonably to prevent more intangible risks such as stress and anxiety which could be caused in the workplace and of course, a proportion if not all of it, could well be influenced by non-work related factors.

It is difficult to make that assessment, but you should always plan for and deal with mental health issues just as much as you would your fire safety or manual handling arrangements.

Ensure your managers are talking to employees at an early stage when possible issues are raised or identified, and encouraging employees to approach their own GP or make use of any occupational health arrangements you have in place.

You need to assess risks of mental health issues just as you would other risks in the business and document them. As with all risk assessments and similar documents, you should be able to demonstrate that you are following them and that you are managing the needs of your employees that suffer issues like this. This is important not just in terms of regulatory enforcement, but in potential personal injury claims or employment disputes.

It is not unheard of for regulators to take action for failures in this regard and regardless of the legal requirements the obvious benefits to having a workforce that are free from the all the types of mental health issues discussed here, can only benefit the business as a whole.

It is worth remembering that health and safety law stretches beyond the obvious physical risks to dealing with issues that historically perhaps, employers have neglected and cannot afford to do any longer without risking intervention by the regulators, the courts and tribunals.

As the Festive Season approaches and all manner of services rearrange their routines over the Christmas and New Year period, this on some occasions can spell trouble for you, particularly in the area of waste management.

I am currently dealing with a number of investigations and prosecutions by Local Authorities of operators who, in the main, have just been too keen when putting waste out for collection.

Local Authority Officers, like Police Officers are perhaps always there when you don’t want them!

There have been a number of occasions where Local Authority Officers have spotted waste being put out too early for collection or left too long and this either results in hefty fixed penalty notice fines or prosecutions in the courts.

This can also result in the business in question receiving a Notice under the Environmental Protection Act, which formally stipulates when waste can be left out and how it is stored and managed at a business premises. These are particularly onerous and sometimes, unless checked carefully, are virtually impossible to comply with, depending on where you operate and who your waste carrier is.

Over the Festive Period, make sure all of your staff know when and where waste should be left out for collection and ensure that no third parties add to the waste if it is left at the kerbside or in a public place awaiting collection. Unfortunately, many operators are prosecuted due to events unknown to them, by someone else leaving their waste outside their premises and them “carrying the can” for it.

Waste management is such an easy thing to get right when you know and abide by the arrangements you have for your particular premises but it also is very easy to get it wrong, with some significant penalties and inconvenience when this happens.

Make sure during this Festive Season that everyone knows what they should and shouldn’t be doing, check whether your operators have told you of any revised collection times and reflect this in your procedures. If a collection is missed, take the waste back off the street or other point until you are sure it can be collected again within the timescales permitted.

As I say, it is so easy to get right but also so easy to get wrong. At £400 for a Fixed Penalty Notice and fines running into many thousands of pounds in the case a prosecution, it is something that you could well do without!