low carbon south west business breakfast ashfords september 2016 business health check

Low Carbon South West

Richard Voke

[email protected]

0117 321 8098

mailto:[email protected]

ASHFORDS LLP. LOW CARBON SOUTH WEST. TUESDAY 20TH SEPTEMBER

Law aimed at protecting or improving the environment – In

the UK the environment is generally defined to mean air,

water and land.

Environmental Law

Regulatory Bodies:

• Environment Agency

• Natural Resources Wales

• Scottish Environmental Protection Agency

• Department of the Environment in

Northern Ireland

• Local authorities


Environmental Law - Key areas for

consideration

• Waste Management – Haz, transport, packaging

• Contaminated land / Controlled waters

• Environmental Management

• Reputation/credibility/CSR – ISO 14001, Go Green etc.

• Sustainability

• CRC Energy Efficiency Scheme/ F-Gas Regulations


Health and Safety Law

Enforcing Authorities - HSE, Local Authorities, FSA

Some key considerations:

• Criminal v Civil

• Fire Safety

• Risk assessments

• Construction/waste/agriculture/manufacturing/services

• Change management

• Control of contractors

• Security


Section 2 and 3 HSWA

• S3: “It shall be the duty of every employer to conduct his undertaking

in such a way as to ensure, so far as is reasonably practicable, that

persons not in his employment who may be affected thereby are not

thereby exposed to risks to their health or safety”

• S2: “It shall be the duty of every employer to ensure, so far as is

reasonably practicable, the health, safety and welfare at work of all

his employees”


Reasonably Practicable

• Reversal of burden of proof

• Combatting threat posed to society, workplace deaths and

injuries costing up to £18 billion p/yr

• Those who engage in commercial activity have accepted

the regulatory controls

• Still required to prove that Defendant owed a duty and it

has been breached

• Not hard for Defendant to establish facts, contrast with

prosecution (particularly technical cases)


Who is responsible?

• Other senior managers

involved in the day-to-day

running

• Other people working on

site

• Body corporate

• Employers (individuals,

partners, trusts charities)

• Employees

• Contractors

• Local authorities


What’s the worst that could happen?

• Closure of facilities / lost revenue

• Media coverage – reputation

damage

• Victims’ families

• Concerned clients

• Damaged plant / buildings

• Fines

• Custodial sentences

• Remediation and Prosecution costs

• Higher insurance premium

• Industrial accident

• Death

• Criminal offence

• Environmental / Pollution

consequences

• HSE / EA Investigators on site

• Loss of communications

• Economic loss through down-time

• Devaluation of business

• POCA Reporting (Mergers &

Acquisitions)

All the above?


Defend Early!

• Prepare for the interview under caution:

- Statement

- Non-attendance

• Disclosure

• Documents, procedures, risk assessments

• Narrow down the issue

• Dictate the interview

• Find out their evidence – review own investigation

• Defend or cut and run?

• Time between the incident and

the enforcement decision

critical

• Appeal Notices?

• Most cost effective work done

before the decision

• Engagement –

constructive/destructive?

• Pros – Avoid prosecution

• Cons – give away defence


New Sentencing Guidelines – Important

Context

The new guidelines will almost certainly raise the level

of fines available.

Implemented on 1st February 2016


Guidelines for Health and Safety offences -

organisations

• Step 1: Determining the offence category

• Culpability

• Harm

• Step 2: ‘turnover’ will be starting point

• Steps 3 to 9 proportionate, innocent third parties, job losses), early

guilty plea, etc.


Categories of organisations

• Large – Turnover or equivalent: £50 million and over

• Medium – Turnover or equivalent: £10 million and £50 million

• Small – Turnover or equivalent: between £2 million and £10 million

• Micro – Turnover or equivalent: not more than £2 million

Charities

• Where a fine falls on public or charitable bodies, the fine should

normally be substantially reduced.


Step 2: Starting point


Sentencing Similarities – HSE v Environment


Understanding

your data

protection

obligations!


Does the DPA apply to you?

1. ‘Personal Data’

2. ‘Processing’

3. Your obligations as a ‘Data Controller’


The Eight Data Protection Principles

Personal Data must be:

• Fairly and lawfully processed

• Processed for limited purposes

• Adequate, relevant and not excessive

• Accurate and up to date

• Not kept for longer than is necessary

• Processed in line with a data subjects rights

• Secure

• Not transferred to other countries without adequate protection


Intellectual property


Questions?

Business sales

Practical tips on planning for a sale

September 2016


What are your main objectives?

• Get maximum value for sellers out of Sale

• Reduce risk to sellers (legal, commercial)

• Closing the deal!


Getting the right advice

Key advisors:

• Corporate Finance

• Tax

• Legal


Getting the right advice

Look for right blend of:

• Sector experience

• Chemistry

• Value


When to start the sale process

• Start early

• Anticipate key issues, be proactive, not

reactive

• Understand timescales, manage

workstreams


Summary

• Focus on objectives

• Start process early

• Build right advisory team

• Get organised


Questions?