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

There have been several high profile cases in the last 12 months in which operators (both remote and non-remote) have been on the wrong end of regulatory sanctions and financial penalties imposed by or agreed with the Gambling Commission.  In October 2018, Paddy Power Betfair reached a regulatory settlement of £2.2 million following breaches of social responsibility code 3.4.1.  In the same month, Mark Jarvis Limited agreed to pay £94,000 for breaches of the same social responsibility code.

In March 2018, Bonne Terre Limited t/a Sky Betting and Gaming were found to have weaknesses in their self-exclusion procedures and to have breached social responsibility code 3.5.3, which led to a divestment of gross gambling yield of £241,894 and £750,000 financial penalty.

Electra Works Limited received a financial penalty of £350,000 for breaches of conditions relating to marketing and advertising.

It is rumoured  that several operators are currently approaching the final weeks of Gambling Commission regulatory action and it is reasonable to expect a similar number of cases being reported for non-compliance of licence conditions and codes of practice in 2019.

On Tuesday 12 February 2019, the Gambling Commission announced further rules for online operators intended to make gambling safer and fairer.  Any new rules place  a further requirement on operators to ensure all that policies and procedures comply with the changes and these new rules increase the  focus on online operators.

The Gambling Commission reported that until now, online gambling businesses had been allowed 72 hours to carry out age verification checks.  Winnings could not be withdrawn until age verification had been completed.

To further guard against the risk of children gambling, the new rules mean that operators must verify customer age before:

  • The customer can deposit funds into an account
  • The customer can gamble with the licensee with either their own money or a free bet or bonus.

This is a significant change and requires verification prior to any gambling taking place.

The Gambling Commission stresses that this also applies to those customers who want to access free to play versions of gambling games on licensees’ website.  Whilst free to play games , with no prizes, are not technical gambling, there is no legitimate reason, say the Gambling Commission, why they should be available to children.

The new rules do set out information as to what is expected of licensees:

  1. Licensees are expected to verify as a minimum, the name, address and date of a birth of a customer before allowing them to gamble.
  2. To ask for any additional verification information promptly.
  3. To inform customers before they can deposit funds of the types of identity documents or other information that might be required, the circumstances in which the information might be required and how it should be supplied to the licensee.
  4. To take steps to ensure that information on their customer’s identity remains accurate.

One of the complaints during the last 12 months has been that operators do not ask for this information until the customer wants to cash out.  The changes mean that operators must ask for the ID as a condition of gambling rather than just cashing out.

Neil McArthur, Chief Executive of the Gambling Commission, was quoted on the website as saying “these changes will protect children and the vulnerable from gambling related harm and reduce the risk of crime linked to gambling.  They will also make gambling fairer by helping customers collect their winnings without unnecessary delay.  Britain’s online gambling market is the largest regulated market in the world and we want to make sure that it is the safest and the fairest”.

Jeremy Wright, Secretary of State for DCSM, agreed and said that this extra layer of protection for children and young people is added so as to protect the vulnerable.

The new rules come into force on 7 May 2019.

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.

Readers may have already seen the report by the London Night Time Commission which was published at the end of January. For those who haven’t had the opportunity of reading this in full, please click on the link below.

https://www.london.gov.uk/sites/default/files/ntc_report_online.pdf

This is a very interesting document which has been created by the London Night Time Commission. The commission is made up of a varied sector of people ranging from industry representatives to a commander in the Metropolitan Police Service, Kate Nicholls the Chief Executive of UK Hospitality and various London Borough personalities.

The recommendations to come out of the report have been fed into the Mayor of London to consider shaping any future policy. The recommendations are as follows:-

  1. The Mayor should put the night at the heart of London policy making. He should introduce a Night Test for all new policies to rate their impact on London’s culture, sociability, wellbeing and the economy at night.
  2. The Mayor should produce Night Time Guidance for Borough’s. This will help them develop holistic night time strategies that go beyond the night time economy and cover all aspect of their town centres and over areas between 6pm and 6am.
  3. The Mayor should set up a London Night Time Data Observatory. This central hub of data on the economy, transport, licensing, infrastructure, safety and health would help Borough’s create their Night Time Strategies and inform local decision making.
  4. The Mayor should publish an annual report on London at night. It should include a series of night time metrics that shows his progress in implementing the night time commission’s recommendations and achieving the ambitions of his 24 hour city vision.
  5. The Mayor should establish a Night Time Enterprise Zone fund that Boroughs can bid into, starting with a path finder zone in 2020.
  6. The Mayor should carry out research to establish the case for longer opening hours across London.
  7. The Mayor should help establish new partnerships across the capital to improve safety, reduce violence and make London welcoming for everyone at night.
  8. The Mayor should develop guidance to help Boroughs, landowners and developers create welcoming, safe and vibrant public spaces at night.
  9. The Mayor should set up a Late Night Transport Working Group to ensure that workers, visitors and customers can get around London quickly and safety at night. The group should consider extending night services, introducing a “Night Rider” fare that allows workers to move between bus, tube, train, DLR or tram in a single fare, and encourage more use of TFL’s land and buildings at night.
  10. The Mayor should extend the remit of London and partners so that they can promote London’s night time offer to Londoners.

These recommendations are dealt with in detail in the report which is well worth a read.

Moving into action from this report will be very interesting. Clearly, every London Borough has its own approach to the night time economy in its specific area. Most London Boroughs have very specific localised statements of licensing policy which have been developed over a significant period of time.

It will not be easy to integrate any London wide recommendations suggested in the report on a local basis and there would be much work to do at a local level to take up these recommendations.

The main suggestion in the report is that the London Night Time Data Observatory would be created to centralise data on the economy, transport, licensing, infrastructure, safety and health, to inform policy makers.

The high street faces significant challenge in its retail function and many believe that a mixture of residential and leisure opportunities will replace some of the dying retail operators. There is real vision in this thorough report. Kate Nicholls states, “We can extend the opening hours of our traditional cultural offerings to reach more Londoners and we can bring underused spaces to life at night and help tackle the decline of our high streets.” These are laudable aims but they come with a considerable challenge. We have found it is particularly difficult to challenge stress areas and cumulative impact policies where Boroughs have deemed that it would be detrimental to the licensing objectives of crime and disorder and public nuisance to either add additional sites or increase the hours of operation. There would need to be a considerable change of emphasis at a local level if the hopes contained in the report stand a realistic chance of having a practical impact.

We will continue to monitor the development of the issues raised in this policy statement.

James, after an extensive and very competitive process, has been appointed a Coroner for the County of Durham and Darlington. James is now responsible with his fellow Coroners to investigate violent and unnatural deaths in this area, together with other deaths which the law specifies require scrutiny such as deaths in police and prison custody.

This is a prestigious appointment for James and reflects on the expertise he has in the investigation of deaths, particularly in the workplace setting.

This is a part time appointment for James and he will continue with the firm dealing with all regulatory matters as well as representing clients at inquests where they require guidance and support.

We all, at the firm, wish James well for his appointment and should you have any questions touching upon inquests and investigation of death, James will only be too happy to answer them for you.

Anna Mathias

Posted by Woods Whur | Woods Whur

It is with great sadness that we learned over the weekend of Anna’s sudden passing. Everyone at Woods Whur is devastated at the loss of a fabulous work colleague and friend. Anna was only in the office a week ago and as usual, she filled the place with her own special personality.

We were delighted when Anna agreed to join us in February 2015 as Andy and I had known, respected and liked her for many years. Even when she was on the other side of cases, she was fair and decent and we held her in the highest of regards.

Very soon after she joined us, we realised that we were very lucky. Not only was Anna a superb technical lawyer, an immensely hard worker who was loved by her clients she was most of all, a beautiful kind-hearted person that lit up our office. Her eccentricities helped to make her an even more special person to be around. Turning up for a meeting with me at Kings Cross with Poppy Terrier on a lead, getting on the wrong train home after her 50th Birthday celebration….and ending up staying the night in Harrogate, are just a few examples of her unique and loveable character.

Talking to her clients yesterday has made Andy and I realise how respected she was within her circle. Some very emotional conversations have made us realise how her personal approach and professionalism, had touched the lives of many within our industry.

Two special occasions stand out for us. We held a surprise 50th Birthday party for Anna just after she had become engaged to Viv and we had a fantastic day with Anna, capped off by her night in Harrogate. The real highlight was seeing her reaction when we won the Yorkshire Legal Awards Best Niche Law Firm in October last year. She was the natural representative for the group photo, and she danced the night away.

All of our love is with her Mum, Brother and fiancé Viv as they go through the worst of times.

It will never quite be the same at Woods Whur without our lady in red.

Rest in peace Anna, you will forever be in our hearts.