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APRIL 2016 RISK MATTERS A QUARTERLY NEWSLETTER FROM THE ARTHUR J. GALLAGHER RISK MANAGEMENT PRACTICE
NEW HEALTH & SAFETY SENTENCING GUIDELINES New sentencing guidelines published by the Sentencing Council towards the end of 2015 are applicable from 1st February 2016. They will apply to any case heard on or after that date, irrespective of when the offence occurred.
The intention of the guidelines is to increase the level of fines for serious offences, whilst reserving prison sentences for very serious offences. However, the fines are also more closely linked to the turnover of an organisation, with organisations having an annual turnover of less than £2M being exposed to lower fines than larger organisations with higher turnover.
The guidelines introduce a structured, step-by-step approach for courts to follow in determining sentences. Being designed to improve consistency, the guidelines involve inputting culpability, risk and harm factors into a series of tables in order to determine the recommended starting point for fines.
The first stage of the process is for the court to determine culpability on a scale from “low” to “very high”. Very High would involve a “deliberate breach of or flagrant disregard for the law”.
The second stage is for the court to consider the nature of what could have occurred. This is a shift in emphasis from “outcome” to “risk”. The new rationale to be adopted is that a breach that could have caused a serious injury should be treated in the same way as a breach that actually resulted in one.
The third stage is to designate the likelihood of harm as high, medium or low.
The culpability factor and harm category processes are also used
to produce a starting point punishment for individuals.
One positive aspect of the new guidelines is the guidance given to shift fines upward or downward from the starting point. Whilst “cost cutting at the expense of safety” or a “poor health & safety record” are likely to be punished, the courts are advised to reduce fines where there are “effective health & safety procedures in place”, “evidence of steps taken voluntarily to remedy the problem” or a “high level of co-operation with the investigation”.
Considerations for all organisations should be • To ensure that the senior management of the business are
aware of the changes. • To ensure that there are robust procedures in place to identify
and reduce risks to the health and safety of employees and others that the business could affect.
• To ensure that there are clear and effective procedures in place to investigate “near miss” and injury or property damage incidents in order to gather effective information and prevent recurrences.
Further information on the new sentencing guidelines can be found at www.sentencingcouncil.org.uk
UPCOMING TRAINING DATES Managing Safely IOSH Course IOSH-approved Managing Safely gives your managers, supervisors and staff the skills they need to understand the risks and run effective Health & Safety programmes. Running over three days, the course covers risk assessment, risk control, hazard identification, waste and pollution protection, accident and incident investigation – plus performance measurement.
Leicester 8th - 10th March 2016 Birmingham 19th - 21st April 2016 Leicester 10th - 12th May 2016 Wakefield 4th, 11th, 18th May 2016
Walbrook Building 6th, 7th, 13th June 2016 Nottingham 7th - 9th June 2016 Birmingham 18th - 30th June 2016 Walbrook Building 17th, 18th, 25th October 2016
APRIL 2016 RISK MATTERS
HSE FIVE YEAR STRATEGY In December 2015 the Health and Safety Executive invited groups, including employers and employees, to have their say in the development of their new five-year strategy. In the first part of 2016 they are consulting with a wide range of stakeholders to help them formulate their strategy.
The new strategy will apply from 2016 to 2020 and cover six themes. The six themes are: • Promoting broader ownership of workplace safety and health; • Highlighting and tackling the burden of work-related ill health; • Supporting small firms; • Enabling productivity through proportionate risk management; • Anticipating and tackling the challenges of new technology and
ways of working; • Sharing the benefits of Great Britain’s approach.
The plans include events across the country, as well as digital discussion groups and a campaign hashtag.
Richard Jones, The Institution of Occupational Safety and Health (IOSH) Head of Policy and Public Affairs, said: “IOSH welcomes the opportunity to contribute to the development of Great Britain’s new five-year health and safety strategy. We also welcome the proposed focus on working together, tackling occupational ill health, supporting SMEs, keeping pace with change and sharing success. The IOSH profession has a leading and influential role to play in working with others and helping more organisations to deliver safe, healthy and sustainable working environments – this is good for individuals, good for employers and good for our economy.”
Judith Hackett, Chair of the Health and Safety Executive, in her blog said “You’ve read these words before but now it’s time for action from all of us. We’re getting ready for the launch of the new strategy for GB’s health and safety system which will take us through to 2020. The strategy has six key themes. But this is a strategy for the system not for HSE alone. We need to act together to gain much broader ownership and commitment and that means we need to talk, share ideas and find the courage to take some new directions.
In her Christmas 2015 Blog Judith Hackett challenged people to consider some questions:
• Does your personal contribution to health and safety really help others - or hinder?
• Is ownership and responsibility for health and safety in the right place in your organisation?
• Is it on the right things? • What could you personally do differently in 2016 that will really
help us to create an even better health and safety system in GB? • Are you prepared to make a resolution to do something different
For further information on the strategy and the process in formulating it visit the HSE Strategy page on its website www.hse.gov.uk/strategy
The HSE also has presence on various social media sites including Twitter, Facebook and LinkedIn and are encouraging people to join in the debate on the strategy using the hashtag #HelpGBWorkWell.
APRIL 2016 RISK MATTERS
NEW REGULATIONS ON ELECTROMAGNETIC FIELDS IN THE WORKPLACE The EU has been working on introducing Europe-wide legislation on controlling the risks from electromagnetic fields (EMF) and the health and safety directive on EMF should finally be implemented by 1 July 2016.
In the UK, the HSE has produced draft regulations and guidance and embarked on a consultation on the proposals. The consultation ended in December 2015 and the results should be published shortly following the consultation.
Health and Safety Effects The directive is concerned with the protection of workers health and safety from exposure to magnetic fields. The emphasis is on the short term effects of exposure including:
• Sensory effects like nausea, vertigo • Nerve stimulation and effects like tingling, muscle
contraction and heart arrhythmia • Interference with implanted medical devices • Sparks caused by induced fields where flammable vapours
may be present • Heating effects
The long-term effects from electromagnetic fields are specifically excluded as these types of effects have not been established scientifically.
Requirements Employers will need to assess or measure the levels of EMF their workers may be exposed to against a set of specific thresholds. If Action Levels (ALs) are exceeded then measures like technical measures (e.g. changing equipment) or procedural measures (like changing work routines) should be introduced. If Action Limit Values (ALVs) are exceeded then the employer must take action to immediately reduce exposure to below this level. This approach fits in with the approach taken in the Management Regulations and seen in the way in which thresholds are used in controlling noise and vibration risks.
The measurement of EMF is complex and the ALs and ALVs vary by frequency. There are also a series of exemptions proposed.
Impact Some of the main industries where the regulations are likely to have an impact are listed in the consultation document, including:
• Health care (particularly MRI scanners) • Electromagnetic processes such as electrolysis
The use of: • Spectrometers • Electro-magnetic cranes • Electric arc furnaces • Induction heaters • Radio transmission • Dielectric heating (e.g. plastic welding, vulcanising or
There is also a list of workplaces and equipment where there is unlikely to be a risk, so most employers can simply conclude there is no significant risk to them.
Further information on this topic can be found in
The HSE website www.hse.gov.uk/ in the sections on non- ionising radiation and also in the following two publications:-
Consultation on the implementation of Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks from physical agents- electromagnetic fields (EMF).