Posted by Woods Whur | Regulatory, Woods 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.