The Health and Safety Executive (“HSE”) have just published their provisional fatal accident statistics for the 2018/2019 period.

It sadly records that 147 workers were killed in the period and a further 92 members of the public were also killed due to work related activities in the same period.

As with all statistics, sometimes the figures that aren’t recorded are more interesting than what is and this report is no exception. The HSE report makes clear that those who die in road accidents are not contained within these statistics as the enforcing authority is the Police and the Department for Transport compiles the details of fatal accidents.

A cursory glance at the Department for Transport figures shows that 1770 persons died in road traffic accidents in a similar period and is generally accepted that a third of them were at work or connected with work at the time of their death.

This substantially increases the total and perhaps gives a more accurate picture, as road deaths at work are of course very relevant to the overall picture if deaths at work.

Also 147 workers were killed in the UK when compared to other member states of the EU, this figure is second from bottom in terms of workers killed. However, organisations cannot be complacent when looking at these figures as deaths at work whilst driving are much higher and the HSE also acknowledge that occupational diseases, on average still takes the lives of around 13,000 people each year.

Some of the headlines from the statistics are worthy of consideration even if they do not give a completely candid analysis of the position.

Unfortunately, construction and agriculture, fisheries & forestry continue to be the most dangerous sectors of the economy for fatal accidents, with 62 of the fatal accidents incurring in these areas, closely followed by manufacturing.

It would be easy for those of us working in the service industry to become complacent and to view fatal accidents as the domain of such sectors of the economy as construction. However, administrative, retail, accommodation and food sectors had 28 fatalities in a similar period. Therefore, the risk of a fatal accident is not confined to occupations which may be stereotypically viewed as dangerous or inherently risky. What is clear is the actual nature and cause of the types of fatal accidents. The top three types of accident which account for 86 of the fatalities relate to falls from height and persons being struck by moving objects or moving vehicles.

Again, for those of you who have read my articles over the previous editions, I have been an advocate for clients to constantly review their most basic and fundamental health and safety arrangements. As they are more often than not the areas where risks continue to manifest themselves. The fact that sadly people still die from falls and being struck by a moving vehicle in the work place, should be one of the easiest risks to mitigate.

In conclusion, the statistics do give a salutary lesson in the fact that accidents do happen and compared to the work force as a whole are rare, but readers of my articles are well aware the aftermath of such an accident is not something any of us wish to contemplate.

Prevention is always better than reading the statistics next year and thinking a part of those statistics are made up of an accident your organisation had!

The Licensing Act 2003 sets out the various licensable activities for which some form of authorisation under the Act is required. One of the licensable activities listed within the Licensing Act is the sale by retail of alcohol. Unhelpfully, the Act provides no definition of “sale” therefore interpretation of the word should be given its ordinary dictionary meaning which is; “exchange of a commodity for money or other consideration”. Case law has determined that there is no sale if a bona fide gift of alcohol is made to a person, therefore no licence is required as there would be no offence in connection with the sale of alcohol.

Consideration has to be made as to whether alcohol is sold by way of retail sale, where customers can only receive a drink upon purchase of a wedding dress, i.e. a sale. There is case law arguing this point and, broadly, the Courts deem that if payment is required (even when the main sale is not that of alcohol) then it is deemed that a sale of alcohol has taken place and a licence will be required for such a sale to take place. The relevant case that addressed this was a case called Doak -v- Bedford [1964] 2 QB 587. In this case, the defendant held parties at her premises for which £1 payment was made in advance where music and dancing took place and food and drinks (both alcoholic and non-alcoholic) were available. The magistrates acquitted the defendant for the offence of selling intoxicated liquor under Section 120 of the Licensing Act 1953 ( selling alcohol without a licence) but this decision was appealed and it was ultimately held that an offence had been committed. The Judge in the appeal case, Justice Paull, stated: “If I pay money for the right, inter alia, to pick out such goods as I desire from a shelf and make those goods mine, in my judgment when I so pick out such goods, those goods have been sold to me.” There is another case that dates back to 1908, Horgan v Driscoll, which also supports the above appeal case of Doak. The facts of this case concern a lodger paying a boarding house-keeper a fixed sum for board and lodging. Within the price of this included bottles of porter which could be consumed if they so desired. It was held that there was a sale of the porter and the boarding-house keeper was liable for the sale of alcohol without a licence. In the case of Horgan v Driscoll, Lord O’Brien CJ stated; “The fact that there was a mingling in the contract for the supply of porter and other things did not prevent the transaction being a sale”. The legislation has since changed, as we now have the Licensing Act 2003, but the legal principles of interpretation of the definition of retail sale remain.

Penalties for providing alcohol by way of retail sale (i.e. without a licence) fall under Section 136 of the Licensing Act 2003. It is a criminal offence to sell alcohol without a licence and the potential sentence for doing so is liable to imprisonment for a term not exceeding six months or a fine set by the Magistrates’ Court (which is unlimited).

In the instances where bridal shops offer a complimentary alcoholic drink to each prospective customer, regardless of whether the customer will proceed to buy a dress, then this would be classed as a gift and therefore no requirement for a retail sale.

It’s not usually just the bride to be that will attend a bridal shop, they are likely to bring along a number of family and friends to share the special occasion with. So what are the implications of bringing someone under the age of 18 with them and they are provided with a glass of bubbly on arrival? The main offence concerning the sale of alcohol to children is contained within Section 146(1) of the Licensing Act 2003, which sets out that a person commits an offence if they sell alcohol to an individual aged under 18. The key word here, again, is that of ‘sale’. There has to be a sale for a person to commit an offence under this section. It is not illegal to provide alcohol to children under 18, but above the age of 5, at home or at private premises. Although this is the law, it is not recommended that children are readily provided with free alcohol at private premises such as a bridal shop due to the obvious safeguarding and health implications.

It is a common sight for brides to be to make an occasion out of wedding dress shopping and it is up to the bridal shops to understand the law in relation to providing alcohol. Special consideration should be made to those bridal shops that may charge a fee for prospective brides to attend the appointment in exchange for a glass of fizz, as this would most definitely be classed as a retail sale of alcohol and therefore a licence would be required.

Next time you consider cracking open the bubbly with a client, please take care and think about whether this may be classed as a retail sale of alcohol.

I am delighted to announce that we have secured two premises licences at Meridian Water in Enfield for Broadwick Live in conjunction with Venue Lab.

I have been lucky enough to be instructed by Venue Lab in the significant development of their estate over recent years. I was pleased to have secured the Printworks Licence in the former news press hall of the Evening Standard, Daily Mail and Metro Printworks in Canada Water which has gone on to become the iconic venue in South London. Subsequent to that, we secured a premises licence for Exhibition London in the former Victorian Structure which originally was used as an engine house for the Central London Railways. The premises sit within the heart of the Westfield Development in Shephard’s Bush and will become an event space and live music venue.

The vision which my client have shown in relation to these premises caused Enfield Council to approach them to see if there was interest in the redevelopment of Meridian Water in Enfield. Having secured a premises licence for the Field Day Festival to be operated on the site this year, I have recently negotiated hard with all of the responsible authorities to allow for the grant of the 7,000 capacity new premises to be known as the Drumsheds. This will operate as an events space and late night electronic and live music venue, exhibiting all of the usual vision of Venue Lab to convert redundant industrial buildings.

This has been developed in partnership with Enfield and Meridian Water, the UK’s largest regeneration project. A £6 billion investment will transform the site into a thriving hub of creativity, which even includes a new network rail over-ground station at Meridian Water.

The Drumsheds sits at the heart of this huge regeneration project and Broadwick Venues and Venue Lab are proud to partner Enfield Council to create this new destination for events, culture and the arts in North London.

I was involved from initial instructions to attending before the licensing sub-committee to secure the premises licence for the Drumsheds.

The deadline for submissions is now fast approaching, being 6 September 2019. The link below gives any interested party the opportunity to make their feelings known to the House of Lords Committee.

https://www.parliament.uk/documents/lords-committees/Gambling-committee/Gambling-Call-for-evidence.pdf

Some of the key questions of the nineteen contained in the call for evidence are as follows:

  • What changes, if any, are required to bring the Act up to date with new technology and the latest knowledge about how gambling harm is distributed
  • Is gambling well regulated, including the licensing regime for both on and offshore operations?
  • How successfully do the Gambling Commission, local authorities and others enforce licensing conditions including age verification?
  • What might be learnt from comparison with other regulators and jurisdictions?
  • Should gambling operators have a legal duty of care to their customers?
  • What are the social and economic costs of gambling? These might include costs associated with poor health and hospital in-patient services; the cost of benefit claims; welfare and employment costs; lost tax receipts; housing costs through statutory homelessness applications; and criminal justice costs.
  • What are the social and economic benefits of gambling? How can they be measured and assessed?
  • Is the money raised by the levy adequate to meet the current needs for research, education and treatment?
  • How effective is the voluntary levy?
  • Would a mandatory levy or other alternative arrangement be more productive and effective?
  • How should income raised by a levy be spent, and how should the outcome be monitored? What might be learned from international comparisons?
  • If, as the Responsible Gambling Strategy Board (RGSB) has suggested, there is limited evidence on which to base sound decisions about gambling by children and young people, what steps should be taken to rectify this?
  • Is there is enough being done to provide effective public education about gambling? If not, what more should be done?
  • What steps should be taken better to understand any links between suicide and gambling?
  • The RGSB has said that by not taking action, the limits of the exposure to young people to gambling advertising “we are in danger of inadvertently conducting an uncontrolled social experiment on today’s youth, the outcome of which is uncertain, but could be significant”. Do you agree? How should we make decision about the regulation of gambling advertising? What might be learned from international comparison?
  • How are new forms of technology, including social media, effecting children’s experience of gambling? How are these experiences effecting gambling behaviour now, and how might they effect behaviour in the future?
  • The restrictions on society lotteries were relaxed by the Gambling Act 2005 and there is concern that some of them are effectively being taken over by large commercial lotteries. Is this concern well founded? If so, what should be done?

As always, it will be interesting to see the responses to the call for evidence.

A similar exercise was carried out by the House of Lords in relation to the impact and of the Licensing Act 2003 for alcohol and entertainment premises. This ultimately proved to be frustrating for a significant number of people who reacted to the call to evidence. The select committee, in that case, made a significant number of recommendations, most, if not all of which, were ignored by government. I

It will be interesting to see the content of these responses, particularly as we have now seen William Hill announcing that they will close, close to 700 betting shops, with the potential loss of 4,500 jobs, due to the reduction in B2 gaming stake, which is staked to £2 which became effective in April of this year.

William Hill said at the time: “William Hill has entered into a consultation process with retail colleagues over plans to close around 700 licensed betting offices. This follows the Government’s decision to reduce the maximum stake on the two gaming products to £2 on 1 April 2019. Since then, the company has seen a significant fall in gaming machine revenues, in line with the guidance given when the Government’s decision was announced in May 2018.” We wait to see how other operators react to this drop in revenue and we could see similar numbers of units closed by the other larger operators.

Observers are waiting to see if perceived FOBT problem gamblers move to other areas of gambling and they become “problem gambling”. The industry will wait to see whether the government reassess the position at any stage in the future.

All in all, there are significant potential changes to the gambling landscape in the UK and we will of course, report on any subsequent changes.

I am delighted to announce that Luke Elford has today joined Woods Whur.

Luke is ranked as the Associate to Watch for Licensing by Chambers & Partners and as a Next Generation Lawyer by The Legal 500.  He has previously been part of the highly regarded practice at Jeffrey Green Russell prior to joining TLT and has developed an excellent client base in London.

Luke specialises in all forms of alcohol and entertainment licensing and has a wide range of experience having previously worked for a London local authority. Luke is uniquely placed to advise clients from ‘both sides of the fence’ and Luke provides strategic and commercial advice helping clients to navigate the myriad of rules and regulations facing licensed premises. He qualified as a solicitor in 2012 and now represents a significant number of high-profile premises in London and around the UK. Luke is described as a “street-wise and up-and-coming licensing lawyer” whilst other commentators praise his “fantastic client service and dedication to the task.”

Luke will work out of our new London offices in Princelet Street which we have just moved into. These offices are operated by Fora Space who have been a client of ours for some time and I am delighted that we have moved into these fantastic offices.

Recent Highlights:

  • Blakes Hotel – Luke acted for Blakes Hotel helping the hotel obtain a new 24 hour premises licence despite fierce objection from officers and local residents.
  • Electric Shuffle London Bridge – Luke assisted the team behind Flight Club Darts in obtaining a premises licence at London Bridge station. With a site located in the cumulative impact zone and objections from 50 local residents Luke persuaded Southwark’s licensing sub-committee to grant a premises licence against its own policy.
  • Jigsaw – Luke helped well-known retailer Jigsaw secure a premises licence in Westminster’s cumulative impact zone for its marquee premises at Carriage Hall in Covent Garden. Luke was able to convince Westminster to grant a licence with a bar element contrary to policy.
  • 34 Surrey Street – called into action when a nightclub in Croydon was the subject of an application for summary review by the Metropolitan Police, Luke was able to convince the borough’s licensing sub-committee that their initial decision [to shut the premises] was wrong and to allow the premises to reopen during the crucial festive period. The sub-committee then agreed [at the full review hearing] that the premises could remain open operating under new management and conditions.
  • Nobu Hotel Shoreditch Luke represented Nobu in relation to their application for a premises licence in Hackney’s Shoreditch Special Policy Area. Luke was able to convince the sub-committee to grant a premises licence in spite of objections from the police, environmental health and local residents.

The Health and Safety Executive (HSE) have recently announced that they have increased the fee they charge to investigate and advise on health and safety matters. James and Sarah consider the implications of this.

 Fee For Intervention (FFI) was established by the HSE to recover some of the costs incurred by them in identifying breaches by persons or organisations (‘dutyholders’) and assisting in putting them right.

Previously, the FFI hourly rate was £129 which has now been increased to £154, a 19% increase. The increase came into force from 6 April 2019.

Under this scheme, the HSE will recover costs from non-compliant dutyholders when a breach has been identified and needs to be rectified.

The scheme previously saw a slight increase in 2016 from £124 per hour to £129, however, we now see a much higher increase as a result of, according to the HSE, inflation and recovering its costs in completing this regulatory function. The reality is the HSE are now seeing the revenue from FFI as a means to bolster its reduced budget.

It’s worth reviewing ‘when an inspector calls’, a leaflet that can be found on the HSE website, http://www.hse.gov.uk/pubns/hsc14.pdf, to ensure everything is in order to prevent the service of a FFI notice. Otherwise it can be an expensive visit!

Whilst to charge you a FFI a material breach has to be discovered, the reality is an inspector can, and often does, find some issues when inspecting premises or activities. The bill you ultimately can be facing may be very costly, running into the thousands.

There is a challenge/appeal procedure but as is often the case prevention is better than cure!

James and Sarah consider two recent Court of Appeal Hearings and its significance following National Asbestos Awareness Week.

 

Two recent Appeal court hearings have reduced the fines imposed on the defendants for different reasons. Would you benefit from the courts stance?

 

In the first case, a company, London NPS, argued that they should have been treated as a small organisation rather than a large organisation under the Sentencing Guidelines. This would have a direct effect on the fine imposed on them. The Sentencing Guidelines are used by the courts to determine the suitable sentence passed on a defendant. The Court of Appeal ruled in the Appellant’s favour on the basis that each incorporated company is a separate legal entity. This is significant and useful to know when an organisation is operating in a group structure. It shows that the courts will treat the offender as the company that was guilty of the act. The fine was reduced from £370,000 to £50,000 as a result of this. This is not just applicable to asbestos matters, but also health and safety matters as the same considerations apply to company sizes. Smaller companies with larger groups of companies may be protected from paying for subsidiary company’s mistakes.

The second appeal concerned the court’s determination of the level of the “likelihood of harm” in a case appealed by the Squibb Group, again this relates to the Sentencing Guidelines. The court criticised the Judge that sentenced the matter for failing to explain why he had disregarded scientific evidence submitted at the trial by the defendant. The court commented that long term risks of this nature are inheritably difficult to assess and quantify and any estimate must be subject to a wide margin of error. The court went on to say that this is not a reason to reject or disregard whatever scientific evidence is available and a rational approach for a Court to adopt these circumstances is to rely on the best evidence that it has. The court reduced the fine from the likelihood of harm from medium to low and reduced the original £400,000 fine to £190,000. The guidelines set out the seriousness of the offence by considering a number of factors, including harm. The significance of this case is relevant for any business that has had work done and/or obtained reports in respect of asbestos, or indeed other issues, as these assist in cases such as this. As with most things, preparation is the key here and by keeping reports and other documents they could assist many years in the future.

Although asbestos was banned in 1999, it is still present in at least half a million buildings constructed before this time. It is important that companies are aware of their responsibility to manage exposure to asbestos whether it’s by creating an asbestos survey, regularly reviewing any work that is done to a property, and sharing information with those affected by their use/role in the building.

If you are concerned or not sure whether you are responsible for managing asbestos exposure and to what extent in relation to your legal obligations then please contact James or Sarah to discuss.

B&Q have pleaded guilty to two charges under the Health and Safety at Work etc Act following an incident at their Kidderminster store which resulted in a pole from a promotional display falling on a customer, causing serious head injuries.

The court fined B&Q £300,000 and ordered it to pay costs of £8,000.  The court heard that B&Q had failed to examine the display as part of daily checks at the store, which would have shown that retainer clips had not been fitted, which meant the signage was not secured.

It’s clear from this case the importance of checking your premises regularly, particularly those temporary structures that may be marketing/advertising displays.

Although the fine appears large enough, B&Q managed to reduce the potential fine by quickly taking action following the accident; this included removing all of the display banner poles to ensure that a similar incident would not occur. In addition it pleaded guilty to the offences which allowed a reduction in the overall fine handed down by the court by up to a third. If not for these prompt actions the fine would have been much higher.

The lesson from this case is any change within a business should be assessed for risks by way of risk assessment and regularly reviewed. Temporary changes to your premises or operations which last for one day or for a couple of weeks still need the same level of scrutiny as long established fixtures and processes. Whilst in this case the source of the accident was an incorrectly constructed advertising display, how many short term measures do you introduce to your business each year and how carefully do you check their health and safety impact of doing so?

James and Sarah consider the Sentencing Council’s report published this month into the Health and Safety sentencing.

The sentencing guidelines are used in courts to promote greater consistency in sentencing for health and safety offences. The guidelines came into force in February 2016. The Sentencing Council have now prepared a report into the effectiveness of the guidelines.

As anticipated, fines have increased overall for organisations after the guidelines came into force. In particular, fines have seen a considerable increase for larger organisations, those that have an annual turnover of £50 million and over. The report states that in the 10 months prior to the sentencing guidelines being in place, the median fine amount was £12,000. In the 10 months after the sentencing guidelines were published, the median fine amount increased to £60,000. That’s an increase of 400%! Fine amounts increased for all sizes of organisations, although the Sentencing Council have commented that they did not anticipate fines to rise for individuals – they have!

Mitigating and aggravating factors in the context of sentencing are those circumstances which may reduce(mitigating) or increase (aggravating) the sentence accordingly. Interestingly, the report states that mitigating factors were cited much more frequently than aggravating factors (90 percent of cases compared with 50 percent, respectively). On average, around two mitigating factors were cited in the report considered. This contrasts with aggravating factors where, on average, less than one aggravating factor was cited in each case. The most common aggravating factors cited were ‘previous convictions’ and ‘cost-cutting at the expense of safety’. We cannot stress the robust stance courts take when ‘cost cutting’ is demonstrated as a factor in the offence.

So what should we take from this? Clearly fines are increasing. The most stark difference is that of fines given to any organisation regardless of size are now routinely significant and in some cases terminal for the viability of that business.

The likes of Poundstretcher, Tata Steel, Tesco, and Stagecoach have all been handed fines of £1 million or more after breaching health and safety law in the last year. The £1 million fine is becoming the new ‘norm’ in the health and safety arena.

On Tuesday 7th May, an updated version of the Licence Conditions and Codes of Practice (LCCP) was issued which introduced new age and identity verification rules. The main changes are as follows:

  • New licence condition 17 which sets out minimum requirements for identity verification
  • Change to the social responsibility code provisions 3.2.11 for age verification for remote betting and gaming
  • Social responsibility code provisions 3.2.13 for age verification for some remote lotteries

Affected operators must from the 7th May, have verified the name, address and date of birth of any customer and will need to have completed this before allowing a customer to gamble. Unverified customers must not gamble.

The GC has also published important new framework for measuring gambling harm amongst children and young people which gives a better understanding of the ways that harms from gambling can impact upon the health relationships and finances of young people. The launch of this new framework comes a week after the commission launched the new national strategy to reduce gambling harm.

The GC has also been busy meeting with a number of operators to discuss anti-money laundering policies and procedures and what is expected of the operator by the GC. These meetings are not strictly classed as formal inspections and are part of a wider GC approach to inform operators as to what is expected. No doubt those operators who have been through regulatory proceedings with the GC will have experienced the range of questions asked by GC officers and it will be interesting to see how those operators who have not been through any similar proceedings deal with the issues raised in the meetings.

GC officers are very clear on a number of key points:

  • Responsibility for compliance sits both corporately and individually. The Board of Directors have responsibility as of course does any compliance committee and MLRO but also those with personal management licences who are in senior positions which may not qualify as key qualifying positions have individual responsibility to ensure compliance.

  • Customer interactions remain poor, both in the recording of them and the quality of the interaction. It is simply not enough to say “spoke to Brian and everything okay” as both the conversation with “Brian” and the recording of it should be more detailed.

 

  • Operators are still not differentiating between source of wealth and source of funds. Source of wealth does not show where the funds come from and once trigger limits have been hit, operators are expected to have personal bank statements from customers showing that funds are coming out of a personal bank account and that there is sufficient funds in the bank account.

  • Keeping up to date with all changes and requirements is still not up to the standards expected. All staff but in particular, all licensed staff are expected to regularly keep themselves up to date with any changes to regulations but also with any GC cases and operators should learn from GC reports of ongoing cases which can be found on their website.

  • The role of the MLRO and those involved in the wider AML team has changed significantly and greater resource is required to enable the MLRO and their team to ensure compliance with the regulations away from any commercial pressures.

All of the above means that it remains a very challenging team for the industry which must learn to adapt and evolve its policies and procedures so as to ensure compliance and avoid regulatory action and sanctions.