Welcome to our Winter newsletter!

As the light finally appears at the end of the Covid19-shaped tunnel, we’ve seen a period of significant developments across our practice area.

In the past month, the Supreme Court has turned inquest practice for regulatory lawyers on its head. An uninvited ruling looks set to make cases following workplace deaths far more challenging and potentially dangerous for employers.

The High Court has also been in action, ruling that the UK has failed to fully implement two EU health and safety Directives. Gig economy workers can now enjoy some of the protections afforded to their employed counterparts. Watch this space for an appeal.

We’ve also included a report from our annual seminar event. We looked at how Covid19 has changed the way regulators are behaving, from their investigatory methods through to their enforcement decision-making. A summary of the key points is included.

As ever, we welcome your feedback and questions so please do get in touch.  We wish you, your colleagues and your families all the best for the festive season.

 

Recent highlights

Regulatory Viewpoint: Covid19 and the impact on regulators’ behaviours

Having held our inaugural seminar in October 2019, it was disappointing but not surprising to find that our follow up event had to be hosted via Zoom.With coronavirus at the forefront of business planning this year, it was perhaps inevitable that it would feature large in our topic choice for the morning; the impact of the pandemic on the behaviour of our safety, health and environmental regulatory agencies.

Read more >

Inquest News: Surprise Supreme Court ruling raises the profile of workplace inquests

On 13 November, the Supreme Court handed down judgment in the case of R (on the Application of Maughan) (Appellant) v HM Senior Coroner for Oxfordshire (Respondent). In doing so – and almost incidentally – the Court has immediately raised the profile and complexity of those cases that result from fatalities in the workplace.

Inquest conclusions
Coroners and their juries have a range of conclusions available to them at the end of an inquest hearing.
Read more >

Health & Safety News: Union scores Court victory for gig economy workers

There are almost five million people working in the UK gig economy and this number is rising. The lack of formality around these working arrangements has its advantages and disadvantages for both worker and business. But with gig economy workers not classed as “employees” a recent case challenged the approach of our existing health and safety laws to managing the risks faced by these flexible workers. The case was brought by the Independent Workers Union of Great Britain (the Union).

Read more >

Health & Safety Viewpoint: Second wave support for vulnerable employees

The clinically extremely vulnerable are considered to be at a higher risk of severe illness from Covid-19 and yet research by Scope found that 22% of disabled employees have had their requests to alter working patterns declined.

So can the clinically vulnerable safely be at work? And what can you, as an employer, do to achieve the outcome that not only best serves your business but also looks after the individual employee?

Read more >

Health & Safety News: extended prohibition on mobile use at the wheel possible

The Government is undertaking a consultation that proposes to make using a mobile phone while driving illegal.

The suggested extension to the existing rules will include prohibitions on taking photographs, using apps, accessing the internet and scrolling through playlists.  This will be in addition to the current restrictions on making and receiving calls and reading and receiving texts.

All employers with vehicles and drivers on the road should follow the outcome of this consultation to establish if the organisation’s policy and supporting training requires reviewing and updating to accommodate any new rules.  The consultation closes on 17 January 2021.  You can access the consultation document here.

 

Health & Safety News: HSE seeks views on driving at work

It is estimated that one third of all road traffic collisions in Britain involve someone who is driving as part of their job, with countless others involving people travelling to or from work.
In recognition of the employer’s role in managing these risks, the HSE published guidance with the Department for Transport.  However, INDG382: Driving at Work has been with us now since 2014 during which time there have been changes in approach and technology, which raise doubts as to the currency of the guidance.  With that in mind, the HSE is seeking views in a short survey, which can be completed here.

Environmental News: New packaging waste recycling targets set

The packaging waste regime imposes legal obligations on businesses that turnover more than £2m and handle more than 50 tonnes of packaging per year where the business is involved in:-

  • manufacturing raw materials for packaging;
  • converting materials into packaging;
  • filling packaging;
  • selling packaging to the final user;
  • leasing out packaging; or
  • importing packaging or packaging materials into the UK.

Read more >

Environment News: Amendments to the Environment Bill tabled

Already making snail-like progress through Parliament – and as we have reported previously – the Environment Bill has been stalled by both the pandemic and Brexit preparations.

More recently, the Government has tabled amendments to the Bill, including a power for the Secretary of State to issue guidance to the Office for Environmental Protection (OEP) regarding its enforcement policy.  This has led some to question the independence of the new regulator.

There are also conservation related amendments, including a new duty for local planning authorities to work with Natural England

Trading Standards News: investigation into false and misleading environmental claims

The Competition and Markets Authority (CMA) has launched an investigation into false and misleading environmental claims in advertising.  In a move that makes good on a key strategic objective, the CMA has opened a consultation, which is expected to lead to new guidance for businesses in future.

The investigation has become a priority as UK consumer spending on ethical goods continues to sky rocket.  The CMA’s concern is that businesses are making false and misleading “green” or sustainability claims in order to cash in on a more principled consumer base.

Trading Standards News: Consultation on banning HFSS adverts

Following Boris Johnson’s vow to tackle obesity, the Government is now consulting on proposals to ban online and TV adverts for high fat, sugar and salt products (HFSS).

Around two thirds of adults exceed a healthy weight and of those people, half are obese.  In addition, a third of children leave primary school either overweight or living with obesity.

Investigations News: New disclosure guidelines

Following a review of the efficiency and effectiveness of disclosure in criminal cases, the Attorney General has issued new guidelines to come into force on 31 December.

The review highlighted the need for earlier engagement between prosecution and defence and warned against treating the process as “a schedule completing exercise”.

Investigations News: Private prosecutions in the spotlight

The Justice Select Committee has published its report into safeguards in private prosecutions.  The report is aimed at ensuring that private prosecutions are fairer and subject to the same standards as public prosecutions.  The review was instigated following a rise in the number of private prosecutions, including by the Post Office, which averaged 52 such cases per year (a large number of which involved its Horizon system).

Read more >

Food News: Six figure fine for Tesco

Tesco has been fined £167,000 following an admission that it had breached food safety and hygiene laws.  When Trading Standards Officers visited a Bracknell store, they found more than 40 out of date products.  The company said that the findings did not reflect its high expectations for its stores.  However, the prosecution found that the store’s documents showed checks that had been done were wrongly carried out.

This is another example of the increased profile of such cases under the 2016 sentencing regime.

 

Food News: FSA publishes local authority enforcement report

The FSA has now published its annual report covering local authority enforcement of food laws across England, Wales and Scotland.  Covering the period to 31 March 2020, the report provides a picture of enforcement activity at the point the country first entered lockdown.

The report’s findings include:-

  • Broad compliance remained at high levels, with 90.4% of establishments in this bracket, which is the equivalent of a 3-star rating under the Food Hygiene Rating System.

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Welcome to our Autumn newsletter!

We hope you are well and still coping with the changes the pandemic has imposed on us all.

It won’t be a surprise to learn that there is a number of virus-related articles in this edition, including how Covid security has become the HSE’s new “top priority” and how it is enforcing this.

But away from the inevitable impacts of Coronavirus, we also bring you news including new environmental initiatives and strategies across the regulatory spectrum, the results of our annual Freedom of Information request of the Care Quality Commission and a new online scam alert system launched by the Advertising Standards Authority.

It is true to say that the pandemic has forced changes in regulatory behaviour across the board.  Many inspectors and officers are continuing to work from home, others are declining to receive mail and remote investigations are increasingly becoming the norm.  But there are also those who have never been busier; Trading Standards being a particular case in point.

As a team, we have been studying these changes of regulatory approach. Next month we will be bringing you a webinar to help you understand the implications and how you can best respond to regulatory interventions in the post-Covid era.  Watch out for the invite hitting your inbox in the coming week.

In the meantime, as always, we welcome your comments and questions so please don’t hesitate to get in touch with us.

H&S Viewpoint: Better late than never

More…

H&S Viewpoint: Face coverings in public – an illogical minefield

More…

H&S News: Covid security now the HSE’s “top” priority

More…

H&S News: Courts already reducing sentences for Covid-impacted businesses

More…

H&S News: New HSE Chair appointed

More…

H&S News: HSE annual statistics published

More…

Care Quality Viewpoint: the results are in!

More…

Care Quality News: Third party concerns to direct future CQC investigation

More…

Environmental News: Agency publishes latest list of Enforcement Undertakings

More…

Environmental News: Plastic bag levy to be extended

More…

Environmental News: Recruitment underway for OEP Chair

More…

Environmental News: Natural England’s 3-point plan for the year ahead

More…

Fire Safety News: Draft Building Safety Bill published

More…

Inquest News: Parliament’s Justice Committee issues call for evidence

More…

Food News: EU halts novel food applications for CBD

More…

Trading Standards News: New scam alert system launched

More…

Trading Standards News: Covid taskforce reports again

More…

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The UKCA mark has something of a chequered history, with the previous guidance having been withdrawn and replaced by relative radio silence from Whitehall in terms of what January 2021 might bring.  But as the end of the transition period rapidly approaches, the Government has now filled the void, confirming as it does so that we will indeed see a UKCA mark post-Brexit.

Background

As an EU Member State, our businesses have long been accustomed to the rigours of the CE marking process; a scheme designed to ensure that certain products placed on the EU market demonstrably complied with specific laws relating to health, safety and the environment.

Following the UK’s departure from the EU, it is now confirmed that most CE marked products will require a UKCA mark if they are to be sold in England, Wales or Scotland.  There will be separate rules relating to products to be sold in Northern Ireland.

Which products require a UKCA mark?

“Most” products which already require a CE mark will need a UKCA mark.  The new rules also apply to aerosol products.

The UKCA mark should not be applied to any product in the absence of a legal requirement to do so.

What does the UKCA mark mean?

A product bearing the UKCA mark will have been subject to conformity assessment to confirm it complies with the relevant essential requirements.  The Government guidance states that those technical requirements, as well as the routes to demonstrating conformity, will be “largely the same” as they are currently.  That said, this is a change and so an additional administrative burden (at least initially) can be anticipated.

When will this change take place?

In most cases, the UKCA mark can be used from 1 January 2021.  It must be used from 1 January 2022.

However, you must use the UKCA marking immediately from 1 January 2021 if your product:-

The changes do not apply to existing stock.  Any items that are completely manufactured by 31 December 2020 can continue to bear the CE mark.

Where should the UKCA mark appear?

You must check the specific regulations that apply to your particular product(s).  Generally, the mark will be applied to the product itself or its packaging.  Sometimes, it may be acceptable to place it on the accompanying manual or supporting literature.

When affixing the UKCA mark, you should be aware that:-

 

Can a product bear both marks?

Yes; indeed many businesses will need to affix both.  The EU will not recognise the UKCA mark and so if you are selling on the continent, a CE mark will still be needed.

You can display both marks if:-

Currently, the product requirements for each scheme are identical and it is widely reported that there are no plans for the UK to diverge from the EU on this point.  However, history tells us we can never say never when it comes to Brexit and with that in mind, businesses ought to keep a watchful eye on their product specific requirements both domestically and on the continent to ensure ongoing compliance.

Looking ahead, businesses should bear in mind that UK bodies will only be able to carry out conformity assessments for CE marking purposes if the EU recognise their competence as part of any future trade agreement with the UK.  As such, it may be necessary to make contingency plans now to deal with any future assessment requirements.

It is understood that the Government will implement a legal framework that will allow UK conformance assessment bodies to continue to operate for most products to be placed on the domestic market.

What should I do now?

Those involved in the supply chain should examine the guidance on a product by product basis so as to establish what the specific requirements will be at the conclusion of the transition period.  Whilst it is anticipated that the majority of organisations can continue “as usual” until January 2022, the new requirements will increase the administrative burdens on businesses and so early preparation is advised.

Importantly, Authorised Representatives and Responsible Persons based in the EU will not be recognised at the end of the transition period.  This applies immediately from 1 January 2021.  If products are to be placed on the domestic market, they must be based in the UK.

You can find details of the new scheme here: https://www.gov.uk/guidance/using-the-ukca-mark-from-1-january-2021.  If you require any support in interpreting the new position as it applies to your business, please do not hesitate to get in touch.

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The HSE has issued further detailed guidance for employers struggling to determine whether confirmed Covid-19 cases within the workforce are reportable under RIDDOR. This latest attempt to clarify the position comes after questions were raised as to how employers, already under pressure from the effects of the pandemic, should interpret the legal reporting requirements.

Who must make the report?

RIDDOR requires “Responsible Persons” to report certain matters to the HSE. Typically employers, the self-employed and others in charge of a workplace will fall into this definition depending on the circumstances.

What must be reported?

The HSE has identified three Covid-19 specific circumstances in which a Responsible Person should make a report:-

• an accident or incident at work has, or could have, led to the release or escape of coronavirus. This must be reported as a dangerous occurrence;

• a worker has been diagnosed with Covid-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease;

• a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.

How does an employer determine when a report must be made?

The new detail added by the HSE has helpfully (and finally) given some clarity.

Most difficulty appears to have arisen in determining when a case of occupational exposure to the virus has happened. We now know that when deciding whether to report this as a case of disease:-

• a report is only required where it is more likely than not that the work was the source of exposure (rather than general societal exposure);

• a judgment is to be made on available information; there is no need for detailed investigation;

• certain general principles can be used to help make that decision:-

o Did the work being done increase the risk of exposure to covid-19?

o Was there a specific incident that increased the risk of exposure?

o Did the work bring the person directly into contact with a known Covid-19 hazard without effective control measures in place?

• has a medical professional highlighted the significance of work-related factors when communicating a diagnosis?

Interestingly, the HSE has determined that work with the general public, as opposed to work with persons known to be infected, is not considered sufficient evidence to indicate that a Covid-19 diagnosis is likely to be attributable to occupational exposure and such cases do not require a report. This significantly restricts the number of employers impacted by these expanded reporting requirements.

How are reports made?

Reports can be made online by following the instructions at: https://www.hse.gov.uk/riddor/report.htm.
You can also report over the telephone by calling the Incident Contact Centre on 0345 300 9923.

Where can more information be found?

The guidance is available in full on the HSE website. It can be found at:-

https://www.hse.gov.uk/coronavirus/riddor/index.htm
https://www.hse.gov.uk/coronavirus/riddor/riddor-reporting-further-guidance.htm#disease-law

If you need any assistance in understanding how the guidance applies to your organisation, please get in touch with our Regulatory team.

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Welcome to our Spring newsletter!

When we started to curate the updates for this bulletin, we could hardly have anticipated the sheer scale of the Covid19 pandemic and its effect on us all. Much has been written about the impact across the various industry sectors (including by us). But whilst coronavirus has rightly demanded our attention, other developments have continued across our practice area, albeit at a slower pace than before.
In this issue, we look at some of those changes; revisiting the issue of sentencing in health and safety cases, looking at recent consultations in allergen labelling and online advertising and examining the Government’s Environment Bill.
As always, we welcome your feedback so if you do have any thoughts, comments or queries, please don’t hesitate to get in touch.
In the meantime, we wish you, your families and your colleagues all the best at this most challenging time.

Health and Safety Viewpoint: Back to Basics

In the past six weeks, our lives have changed beyond all recognition. With the lockdown and its stringent restrictions on our movement, virtually all jobs have changed in some way. As thoughts turn to how we might exit the lockdown, workplaces will need to continue to adapt to the challenges Covid19 presents.

More…

Health and Safety Viewpoint: Sentencing update

The Sentencing Council’s Definitive Guideline for Health and Safety Offences applies to all cases sentenced after 1 February 2016, and prescribes the calculations to be undertaken by a Court when sentencing.

More…

Health and Safety Viewpoint: Corporate manslaughter prosecutions

The Corporate Manslaughter and Homicide Act 2007 was introduced to make it easier to prosecute companies, where it was alleged that corporate failings had caused an individual’s death. The Act sought to address long-standing public dissatisfaction at a perceived failure to hold organisations to account in the aftermath of high profile disasters such as the Herald of Free Enterprise and Hillsborough.

More…

Fire Safety News: Government responds to “Building a Safer Future”

The tragedy at Grenfell Tower rightly spawned a number of consultation exercises designed to establish how we can better manage building safety. One such exercise, “Building a Safer Future” sought views on proposals for a “radically new building and fire safety system”. It reported last year and, earlier this month, the Government published its response.

More…

Care Quality Viewpoint: Failing to prepare is preparing to fail

The steps taken by a provider prior to and in the immediate aftermath of a crisis event can be determinative of what enforcement action is pursued against it. It is imperative that providers proactively consider how they would respond to a crisis.

More…

Care Quality News: Increasing care sector fines but no consistency?

The number of prosecutions brought by the Care Quality Commission (CQC) continues to increase. Although the fines imposed on providers following conviction have been relatively low, the lack of applicable sentencing guidelines has led to inconsistencies between fines, as well as with those handed down in sectors where guidelines do apply.

More…

Care Quality News: Allegations of duplication in CQC reports

It came to light in January that duplicate material had been identified in a number of Care Quality Commission (CQC) inspection reports.
Whilst initially it was reported that there were 78 instances alleged, the figure subsequently rose to 108 following internal peer review and audit by the CQC.

More…

Environment News: Environment Bill on hold

The progress of the Environment Bill has been temporarily suspended as Parliament works to cope with the practical and logistical challenges presented by Covid19. At the time of suspension, the Bill was being considered by a Public Bills Committee.

More…

Environment News: Waste crime task force launched

The war on waste has a new ally as the Government launched the Joint Unit for Waste Crime (JUWC) earlier this year. Described as a “giant step forward”, the new unit brings together law enforcement agencies, the environmental regulators, HMRC and the National Crime Agency to tackle the growing trend in criminal waste networks.

More…

Food Safety News: Use by dates under the spotlight

Tesco recently challenged a Magistrates’ Court decision that it was a criminal offence for a shop to offer food for sale after its labelled use by date.

EU food law is clear that “unsafe food must not be placed on the market” and as a result requires highly perishable foods to be marked with a use by date. After that date, the food is deemed to be unsafe.

More…

Food Safety News: Novel food deadline for the CBD industry

Ever since the European Commission confirmed the “novel” status of cannabidiol (CBD) in January 2019, businesses in the UK market have been thrown into a state of flux given a very uncertain regulatory position.

More…

Food Safety News: Allergen consultation now closed

The Food Standards Agency (FSA) has now concluded its consultation exercise as it looks to finalise its Technical Guidance for Allergen Labelling in advance of the introduction of “Natasha’s Law”. Coming into force on 1 October 2021, the new rules amend the Food Information Regulations 2014 to require increased detail when labelling food that is pre-packed for direct sale (PPDS).

More…

Advertising Standards News: Call for evidence extended

Online adverts represent half of all advertising spend in the UK.
Their increasing importance to businesses looking to market products and services brings benefits and challenges in equal measure. The dynamics are different, the speed of response much quicker and the potential to target an audience unparalleled.

More…

Trading Standards News: Busier than ever?

Whilst many regulators have suspended routine activity and are working from home during the lockdown, National Trading Standards (NTS) has warned the public about a rise in scams following the onset of the pandemic.

More…

COVID-19: Information from the regulators

The pandemic has presented challenges for the regulatory agencies as they seek to discharge their statutory responsibilities during the lockdown. Most have issued revised guidance and position statements, which we have collated.
The guidance is largely concise and clear but if you have any queries regarding its application to your business, please do get in touch.

More…

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https://www.ioshmagazine.com/2020/03/27/coronavirus-and-law-faqs

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Welcome to the latest edition of Regulatory News! It’s been a busy time since our first edition, not least because we hosted our first client seminar, which focused on property risk. Thanks to all those who came to support the event and, for those unable to make it, we’ve included the headlines in this edition of the newsletter. We were also delighted to be recognised again by our clients and our peers in both of the leading independent legal directories; the Legal 500 and Chambers & Partners, which were published last month. Legal 500 commented: “Pannone has emerged as a specialist in the area of Health and Safety. They have recruited the best from other firms in the marketplace and are now well poised to become a big player. Their attention to detail and strength in depth enables them to provide a comprehensive service to their clients. One to watch for the future.” Thanks to all our wonderful client referees for their feedback!

Thank you for your comments on our first newsletter, issued in September (https://tinyurl.com/wwyqtm8). As always, we really value your opinion so if you have any questions or comments on the newsletter attached, please don’t hesitate to get in touch.

H&S Viewpoint:

Report from our inaugural seminar read more

H&S News:

£3M fine halved on appeal read more

New work related stress inspection criteria read more

HSE review of the impact of the sentencing guideline read more

Fire Safety News:

New role for Dame Judith Hackitt  read more

Care News:

CQC enforcement on the rise read more

New memorandum of understanding read more

Inquest News:

Care home manager jailed read more

Environmental News:

Annual report on environmental performance read more

Climate change risk assessments required for new bespoke permits read more

Waste exemptions consultation ongoing read more

Abstraction and impoundment move into permitting regime read more

Consultation on plastic straws read more

WEEE compliance fee consultation read more

Trading Standards News:

OPSS publishes delivery report read more

OPSS publishes national market surveillance programme read more

Food Safety News:

British consumers take food safety for granted read more

Modern Slavery News: Government publishes annual report read more

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The Sentencing Council has today published the Definitive Guideline for offences of manslaughter.  Previously left to judicial discretion, in issuing this new document the Council has completed the suite of guidance available to Courts tasked with sentencing these serious crimes.

In preparing the Guideline, the Sentencing Council had the unenviable task of attempting to deal fairly, consistently and justly with all manslaughter offences, notwithstanding the hugely varying circumstances in which these offences can be committed.  Distilling their efforts into a concise and user friendly format can have been no mean feat.

The Guideline is overdue, particularly given the well-publicised bolstering of the Courts’ powers when sentencing health and safety cases. Although gross negligence manslaughter cases are still relatively rare, they often accompany charges of corporate manslaughter and serious breaches under the Health and Safety at Work etc, Act 1974, both of which were covered in the February 2016 Guideline.

The consultation exercise that preceded today’s publication demonstrated this nexus and there was clearly much consideration of the workplace fatality as a source of gross negligence manslaughter cases.  Indeed, key changes were made to the original draft Guideline to reflect these discussions

How does the Guideline work?

The Guideline bears the now familiar step by step approach we have become used to in health and safety cases. It calls on Judges to retain some flexibility when sentencing to achieve fairness; partly a way of reflecting upon the huge range of circumstances that might result in conviction.

 

Step 1:

 

Determine the offence category by examining the offender’s culpability and the harm caused.  There are four classes of culpability:

 

·         Level A: very high

·         Level B: high

·         Level C: medium

·         Level D: low

 

 

The Court will consider factors such as offending motivated by financial gain, “blatant disregard” for the high risk of death resulting from the negligent conduct and the offender’s role (if acting with others).

 

The Courts are directed to “avoid an overly mechanistic application of these factors”, a direct result of arguments raised at the consultation stage.

 

The Guideline quite properly notes that in these cases, “the harm caused will inevitably be of the utmost seriousness”.

 

 

Step 2:

 

Identify the starting point and category range:-

 

·         Level A culpability: starting point 12 years (range 10 – 18 years)

·         Level B culpability: starting point 8 years (range 6 – 12 years)

·         Level C culpability: starting point 4 years (range 3 – 7 years)

·         Level D culpability: starting point 2 years (range 1 – 4 years)

 

The Court is then directed to a non-exhaustive list of factors that may aggravate or mitigate the offence.  Matters increasing seriousness include previous (relevant) convictions, ignorance of warnings and attempts to conceal evidence.  Amongst the mitigating factors are previous good character, remorse, attempts to assist the victim and self reporting/co-operation with the investigation.

 

 

Step 3:

 

 

Consider any factors warranting a reduction in sentence for assistance to the prosecution.

 

 

Step 4:

 

Reduction in sentence for guilty plea.

 

 

Step 5:

 

 

Dangerousness: is it appropriate to impose a life sentence or an extended sentence?

 

Step 6:

 

Totality: when sentencing for more than one offence or where the offender is already serving a sentence, consider whether the penalty is just and appropriate to reflect the offending as a whole.

 

 

Step 7:

 

 

Consider whether to make a compensation order and/or a directors disqualification order.

 

Step 8:

 

 

Give reasons for the decision

 

Step 9:

 

 

Consider time spent on bail

Can we expect longer sentences?

Almost certainly; yes.

In developing the Guideline, the Council looked at sentencing data for 2014 and found that the median sentence for manslaughter in that period was 4 years.

The Guideline sees the overall sentencing range for gross negligence manslaughter run from 1 year through to 18 years. However, that 2014 median sentence lies at the upper end of a low culpability sentence and is the starting point for a medium culpability offender under the new regime.  If we consider the criminality of the negligence required to bring a case of this type in the first place, it seems very likely that the median sentence will be considerably higher in coming years.

The Guideline makes no mention of the potential for sentences to be suspended; a clear indicator of the approach the Council expects from the Crown Courts.

Toughening sentencing in gross negligence manslaughter cases is the final piece of the jigsaw when it comes to arming the judiciary with the support they need to impose heavier penalties on a more consistent basis where a death results from a workplace incident.

When will this apply?

The Guideline will apply to all cases sentenced after 1 November 2018, regardless of the date of offending.

The Guideline and consultation response are available here https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter_Definitive-Guideline_WEB.pdf and https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter-consultation-response_WEB.pdf

Rhian Greaves is a Director in the Regulatory team at Pannone Corporate LLP

 

 

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Like all public services, the HSE has had to bear its fair share of cuts since 2009/10; indeed it has seen a 46% reduction in central Government funding in that time.  So it was perhaps no surprise to see that this week’s annual statistics release from the regulator confirmed what those of us in practice have been seeing over the past few years; a continued drop in enforcement activity.

The publication of the Executive’s annual statistics ought to provide food for thought for all employers.  This year is no different.  Headlines include:-

Industries with statistically significantly higher injury rates included:-

Turning to the enforcement perspective, the picture across the board shows consistently less activity from the HSE:-

Where prosecutions have been pursued, there has been a drop in the conviction rate, from 95% to 92%.  That said there remain industries where every single case pursued has resulted in a guilty plea or verdict.  Sectors in that bracket include:-

Employers in the North West remain the most heavily prosecuted.  In line with the national picture however, the region has seen one third fewer cases reach a conclusion than in the previous year. 

With conviction rates remaining high, the spectre of sentencing continues to be at the forefront.  Here there has been a significant 24% drop in the overall fines collected (from £71.5m to £54.5m).  Interestingly however the average fine per conviction continues to rise, albeit at a slower rate than in recent years, now standing at £149,661.

Looking at the detail:-

As a country however, we continue to out perform our European neighbours from a health and safety perspective, a point rightly noted by HSE Chair Martin Temple.  “Great Britain’s position as one of the safest places to work should be a point of pride for us all, but these figures show there is still much to be done to ensure workers go home both healthy and safe”. Like other regulators, the HSE will continue to strive to manage with its ever reducing budget and an analysis based on enforcement statistics is far too simplistic to give the whole picture.  However, a strong and properly resourced regulator is a key component in the daily challenge of improving our health and safety performance as a whole.

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In this edition, we look at the increasing use of statistics in the health and safety sentencing process, examine the impact of underfunding on our health and safety enforcement agencies and look at the potential for a statutory duty of candour.

We also round up the news from across our practice area, taking in developments in environmental, food, fire safety, inquest and trading standards law.  We’d love to hear your feedback on our first issue so please do get in touch with your thoughts!

This is also a great opportunity to remind you of our inaugural seminar, which is taking place on 10 October 2019 at Innside, Manchester.  Covering property safety risk, we have an exciting programme that will equip you with practical ideas and tools to strengthen and shape your property risk management strategy.  Designed for corporate and commercial organisations, the seminar covers everything from risk identification, management and allocation to future predictions for the regulatory landscape post Grenfell.  To secure your place, email Susan Rigg

HEALTH & SAFETY: VIEWPOINT

Statistically are we heading in the right direction?
Statistical evidence is playing an increasing role in determining the likelihood of harm as required by the Definitive Guideline on sentencing health and safety cases. h

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623728_sept2019-hs-viewpoint-statistics.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

A cry for help?
Local authority enforcement is in decline. The vastly reduced capacity of environmental health departments means they cannot target and action breaches as before. And with Whitehall endlessly engaged in Brexit planning, the most forceful cry for help has come from fellow regulator the Health and Safety Executive (HSE), which published a Statement of Commitment in April.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623729_sept2019-hs-viewpoint-statement-of commitment.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

CARE: VIEWPOINT

Duty of candour: a level playing field?
When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour back in 2017, he no doubt hoped progress might now have been made. His draft Bill, prompted by his involvement with the Hillsborough families, required public authorities to admit responsibility following adverse incidents, even before court proceedings began.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623731_sept-2019-care-viewpoint-candour.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

HEALTH AND SAFETY: NEWS

Health, safety and environmental inspections in decline
Research by the Unchecked campaign group has revealed a staggering drop in enforcement since 2009/10.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623732_sept2019-hs-news.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

INQUEST: NEWS

Annual Coroner Statistics Published
The Ministry of Justice has published the Annual Coroner Statistics for 2018 in conjunction with the Office for National Statistics.  

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623733_sept2019-inquest-news.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

FOOD SAFETY: NEWS

New recommendations for the Food Standards Agency
The National Audit Office has published a report, “Ensuring Food Safety and Standards”. 

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/625637_9sept2019-food-safety-news.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

ENVIRONMENTAL: NEWS

Resources and waste strategy
DEFRA has confirmed that final proposals are being developed for the Government’s Resources and Waste Strategy.  The Strategy forms part of the 25 Year Environment Plan, which commits to leave the environment in a better condition for the next generation.  

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623735_sept2019-environmental-news.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

FIRE SAFETY: NEWS

Double consultation
As we passed the second anniversary of the tragedy at Grenfell Tower, we could slowly see the seeds of change being sown.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623736_sept2019-fire-safety-news.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

CARE: NEWS

Decrease in CQC enforcement
The Care Quality Commission (‘CQC’) has published its Annual Report for 2018/19. The Report covers the CQC’s operation and performance as a whole, including its use of enforcement powers.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623737_sept2019-care-news.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1

TRADING STANDARDS: NEWS

Government to consult on new powers for the CMA
The Government is to consult on giving the Competition and Markets Authority new powers to directly fine businesses that overcharge or mislead their customers.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/623738_sept2019-trading-standards-news.pdf?dm_i=21HH,6GO72,WCJ1PL,PN7SF,1


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FOOD LAW CASE UPDATE:

ALLERGEN MANAGEMENT

Mohammed Abdul Kuddus v The Queen [2019]

Background

Mr Kuddus was the sole director and owner of RS Takeaway Limited, a company that traded in Oswaldtwistle, Lancashire and was known as “Royal Spice”.  He had bought the business in November 2015, from Harun Rashid, who in turn had owned it since December 2014.

As at 30 December 2016, Messrs Kuddus and Rashid worked at Royal Spice together.  Mr Kuddus was the Head Chef, whilst Mr Rashid’s role was unclear in that there was a dispute as to whether he was the restaurant manager or a delivery driver.

Facts

On 30 December 2016, two teenage friends Megan Lee and Katie Bracegirdle, ordered a takeaway from the Royal Spice.  Their order was placed through the third party website, Just Eat.  That order included a Peshwari naan, an onion bhaji and a Seekh kebab.

The Just Eat platform invited customers to leave a note for their chosen restaurant.  In this case, Katie Bracegirdle entered “nuts, prawns”.  This was done on behalf of Megan Lee, who had what she thought was a mild allergy to a number of foods including peanuts.

The website would then have presented a further link, which said “do you have an allergy or other dietary requirements?”.  Clicking on this link would have provided further dietary and allergy advice and presented the customer with three options, the first of which was “we strongly advise you to contact the restaurant directly before you place the order”.  It is not known whether Katie and Megan clicked on this link but no direct contact with Royal Spice was made.

Royal Spice received a print out of the order at its Just Eat terminal.  The order, including the note about nuts and prawns, was seen by Mr Rashid.  There was no evidence that Mr Kuddus who was working in the kitchen, ever saw it.

The food delivered to Katie and Megan contained peanut protein despite the comment entered at the point of order.  Upon eating the kebab, Megan suffered an allergic reaction that was initially mild.  She took an antihistamine and, having begun to feel better, continued to eat the meal albeit avoiding the kebab.

For a while Megan suffered no further reaction and did not appear to be in any discomfort when collected from Katie’s house by her Mother.  However, shortly afterwards, she became distressed, more severe allergic symptoms became apparent and she was struggling to breathe.  An ambulance was summonsed but despite the best efforts of her Mother and the medical professionals, Megan suffered irreversible brain damage and her life support was withdrawn a few days later.  The Post Mortem concluded that the cause of death was a fatal asthma attack precipitated by an allergic reaction to nuts.

Megan’s allergy

Megan was generally healthy but suffered with asthma, which was described as “quite bad”.  She had been aware of her nut allergy for several years but having undergone testing and on medical advice had thought it to be mild.  A doctor had advised she take antihistamines but she had never been prescribed an EpiPen nor had she been referred to a specialist.  She had never had a severe reaction before and there was nothing in her medical history to suggest the advice given on allergy management was wrong.  Both she and her parents understood her allergies to be mild and had never been aware that they might lead to her death.

In evidence at the trial, an expert witness confirmed that the tests Megan had undergone would not actually diagnose allergies and laid bare the uncertainties that surround this area of medical practice.  In particular, doctors still do not fully understand how the test results relate to the severity of any likely reaction.  In short, a positive test result is a warning but it is difficult to predict how each individual patient will react when presented with the problem allergen.

When ordering the takeaway in December 2016, Katie Bracegirdle gave evidence that Megan had not initially wanted to add any notes to the Royal Spice.  Katie gave evidence that Megan said, “it doesn’t matter, it’s not a big deal, I don’t have an issue”.  When pressed by Katie to enter a note on the Just Eat system, Megan suggested adding “nuts and prawns”, which her friend did. 

Food safety management at the Royal Spice

The evidence showed that no Hazard Analysis and Critical Control Point (HACCP) procedures were in place or implemented at the Royal Spice.  Whilst the restaurant had implemented the “Safe Food, Better Business” system, it had not done so fully.  There were no written procedures for allergen management and staff had a limited understanding of the issue.  There appeared to be no understanding of the risks presented by cross-contamination or by allergen warnings on pre-packaged ingredients.

The Local Authority had previously written to all food businesses in the area advising of approaching changes in the law and giving advice as to the need to communicate the presence of allergens within dishes to customers.  Despite this the Royal Spice menu contained no information regarding ingredients, simply stating “think allergy” and “please ask a member of staff”.

The criminal case

Following an extensive investigation by the Police and Hyndburn Borough Council, charges were laid against Royal Spice, Harun Rashid and Mohammed Abdul Kuddus:- 

Royal Spice and Mr Kuddus pleaded guilty to the Regulatory Offences before trial, whilst the jury convicted Mr Rashid in respect of those matters.  Both men were convicted of manslaughter by a jury at Manchester Crown Court and both received custodial sentences in relation to their manslaughter convictions but also in respect of their part in the Regulatory Offences. The Royal Spice was fined £550, which probably reflected an inability to pay a higher financial penalty.

The appeal

Mr Kuddus launched an appeal against his manslaughter conviction and sentence.  He said that he had never seen the “nuts and prawns” note attached to the order and that whilst he accepted he was ultimately responsible for ensuring that the Royal Spice operated in accordance with food safety legislation, this was not sufficient for a manslaughter conviction.

Gross negligence manslaughter is committed when an individual negligently breaches an existing duty of care in circumstances in which it was reasonably foreseeable that the act or omission would give rise to a serious and obvious risk of death.  The breach must cause the death and must be “truly exceptionally bad and so reprehensible” that it justifies the conclusion of gross negligence and the resulting criminal sanctions.

Counsel for Mr Kuddus argued that whilst his client was responsible for food safety management at the Royal Spice, inadequacies in that regard were not enough to convict him of the more serious manslaughter offence.  Whilst limited companies such as Royal Spice are often considered to have imputed knowledge in respect of regulatory matters, it would be wrong to approach a manslaughter case against an individual in this way.

The Court of Appeal agreed, noting that “the fact [Mr Kuddus] was the sole director of [Royal Spice] placed on him the duty of ensuring that appropriate systems were in place to avoid the risk that a customer with a declared allergy was not served food which contained the allergen”.  The risk was that a customer would place and be served an order, which the system should have been designed to prevent.  This is not the same as there being an obvious and serious risk of death.

There was no evidence Mr Kuddus had seen the note about nuts and prawns and so could not have foreseen an obvious and serious risk of death might result from the food he prepared.  The Court of Appeal therefore determined that the conviction for manslaughter could not stand.

Impact for the retail catering industry

In its judgment, the Court of Appeal made a number of important points that should be considered by all those in the sector:-

The Court concluded by noting the increased awareness around the potential risks to allergy sufferers in the context of food service, saying, “it should be understood that the courts will rigorously scrutinise the way in which restaurants discharge the duty of care that they owe to such customers”.

Comment

This case is just the latest in a line of sobering reminders of the importance of effectively implemented controls for allergen management.  As we continue to learn more about the impact of such conditions, regulatory scrutiny in this area will only increase.  And whilst the Court was sympathetic to the limits of Mr Kuddus as an individual given the particular facts of this case, the judgment makes it clear that the manner in which food businesses manage safety and hygiene will be closely scrutinised and that significant criminal penalties can and will follow where regulatory failings are exposed.

The expert evidence at the trial showed that teenagers and young adults predominate in studies of fatal allergic reactions.  The majority of severe non-fatal allergic reactions also occur in this age group, perhaps because they are young people transitioning to independent living and learning to manage allergies without parental oversight.  Megan Lee was just 15 years old when she died.  If your business typically targets or serves people within this demographic, additional controls may be required. Businesses in the food service sector should regularly review their allergen management strategy to ensure it remains current, both in respect of the organisation itself and current guidance.  Regular refresher training for customer facing employees is vital as is ongoing due diligence in respect of the supply chain. Remaining abreast of changes in the law and available guidance is also key.

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The first quarter of 2019 saw an inspection blitz by the Health and Safety Executive (HSE) on the food manufacturing sector.  As the industry recovers from this increased intervention we have also seen, quite coincidentally, a number of high profile prosecutions culminating in yet more seven figure fines. 

Associate Partner Rhian Greaves looks behind the headlines at the common risks the industry must manage and the reality behind the press reports.

The industry

Defra’s most recent national statistics demonstrate the importance of the food sector to the national economy.  Employing 12% of the workforce at the last count, it has seen a 1% increase in employee numbers over the year to the first quarter of 2018.

More specifically in food manufacturing, the proliferation of SMEs is striking comprising 97% of businesses in the industry covering 28% of employment and 19% of turnover.

Whilst the scope for growth in the sector is limited by consumer intake capacity, its economic and social impacts cannot be underestimated.

What are the risks?

As many food manufacturers know, there is a well rehearsed list of 12 risks that between them are responsible for 96% of injuries to those working in the sector.  They are:-

  1. Interactions with machinery, particularly the absence of guarding.
  2. Workplace transport.
  3. Work at height.
  4. Entry into silos and confined spaces.
  5. Slips and trips on wet and contaminated floors.
  6. Being struck by objects and knives.
  7. Manual handling.
  8. Work related upper limb disorders.
  9. Occupational dermatitis.
  10. Occupational asthma.
  11. Noise induced hearing loss.
  12. Work related stress.

The HSE’s document, “A Recipe for Safety” (http://www.hse.gov.uk/pubns/priced/hsg252.pdf), states quite simply, “managing these 12 issues in your company will significantly reduce injuries, ill health and the associated costs”.

What does the enforcement picture look like?

Perhaps mindful of the continuing push to put the “health” back into health and safety, the recent HSE inspection initiative concentrated on occupational asthma caused by exposure to flour dust, along with musculo-skeletal disorders.  And whilst the published outcomes from that initiative are awaited, there will no doubt also have been an increased incidence of enforcement action relating to the more familiar safety issues listed above.

Looking at the prosecution picture, we see this theme continuing. Of the six cases involving fines exceeding £1m:-

When we look further into other reported cases, we see a litany of accidents around vehicle movements, absent or inadequate guards and moving machine parts, justifying the focus on the “list of 12”.

What is the cost?

As an industry, food manufacturing comprises a wide range of sectors and activities with many common themes but also each with its own risks and concerns.  The prevalence and profile of these businesses and the brands they have to protect give the impression, at least, of a target industry perhaps more prosecuted than others.  However, an analysis of the very highest fines handed down across all industries shows that construction, general manufacturing and retail and logistics businesses appear with a greater frequency.

Where food manufacturers are prosecuted, we generally see the highest penalties imposed on the familiar consumer brands but even so, the fines do not come close to representing 1% of turnover for those household names.

For those in the SME space, we see them faring far better than their counterparts in construction and care, for example, where the new sentencing guidelines created a squeezed middle in which smaller businesses were deprived of a far greater proportion of turnover in the punishments imposed.  In food however, that does not appear to be the case, with our analysis suggesting that fines have broadly occupied 0.01% through to 1% of turnover (when compared to 1.5% – 3.75% for construction SMEs in the year to February 2017).

What next?

We await the outcome of the HSE’s New Year inspection blitz with interest; quite how much enforcement centred on the health aims identified at its inception as opposed to focussing on the more obvious safety concerns will be telling.

For the sector as a whole, the signs are encouraging.  Since the introduction of “Recipe for Safety” in 1990, the industry has seen a 55% reduction in its combined injury rate and a 40% drop in major injuries.  With continuing active industry participation and special health and safety interest groups, the direction of travel is positive.  The challenge ahead for this industry (as for all others) is to improve upon safety performance whilst also meeting the challenges presented by adverse health impacts, not least work related stress and asthma and other long-term conditions.

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As much as 85% of marine litter is plastic. Largely comprising single use items and fishing gear and found on the beaches of Europe, plastic pollution of our seas and oceans was highlighted in shocking technicolour by the famous Blue Planet episode in which Sir David Attenborough examined human impacts on the marine environment. 

In an attempt to start to tackle the problem, the European Parliament recently approved a Directive to reduce the impact of certain single use plastic products on the environment. Coming into force once published in the Official Journal, the Directive classifies categories of products and creates an objective for each grouping it makes. 

Reinforcing well understood concepts of producer responsibility and the waste hierarchy, the Directive aims to achieve a circular life cycle for plastics. It encourages the retention of value in products and materials for as long as possible, so generating less waste with a view to economic benefits being felt through the reduction of pressure on precious resources and the environment. “Plastic products should be manufactured taking into account their entire lifespan. The design of plastic products should always take into account the production and use phase and the reusability and recyclability of the product” (recitals to the Directive).

Which products are covered?

Aimed at single use plastics, the Directive defines these as products, “made wholly or partly from plastic and…not conceived, designed or placed on the market to accomplish, within its lifespan, multiple trips or rotations by being returned to a producer for refill or reused for the same purpose for which it was conceived”.

The Directive sets out eight objectives, identifying which products are to be caught by each of its requirements as follows:-

  1. Complete ban: Member States are to prohibit the placing on the market of the products listed and those made from oxo-degradable plastic. This applies to cotton bud sticks, cutlery, plates, straws, stirrers, balloon sticks and polystyrene food trays, cups and beverage containers.
  2. Consumption reduction: Member States are to take necessary, proportionate and non-discriminatory measures to achieve an ambitious and sustained reduction in the consumption of drinks cups (including covers and lids) and take away food containers. Within two years, Member States are to publish the measures they have adopted before integrating them. An ongoing requirement to monitor and report on the effects on the market is also included. 
  3. Product design: drinks bottles (including caps and lids) and composite beverage packaging can only be placed on the market if those caps and lids remain attached to the product during intended use.
  4. Product design: from 2025 PET bottles must contain at least 25% recycled plastic and at least 30% from 2030.
  5. Product labelling: sanitary towels, tampons and applicators, wet wipes, drinks cups and tobacco products with filters must bear a conspicuous and clearly legible and indelible marking on the packaging or on the product itself informing consumers of the appropriate waste management or disposal options in line with the waste hierarchy, the presence of plastics in the product and the resulting negative impact of littering or inappropriate disposal on the environment.
  6. Extended Producer Responsibility: must be established for the listed products with producers to cover the costs, which include the costs of awareness raising measures; waste collection for products discarded in public collection systems; and cleaning up resulting litter from the products. This applies to take away food containers, flexible packaging materials used for takeaway food, drinks bottles (including caps and lids), composite beverage packaging and drinks cups.
  7. Separate collection: Members States are to take necessary measures to ensure separate collection for recycling of drinks bottles (including caps and lids) and composite beverage packaging. This includes a 90% separate collection target for plastic bottles by 2029 (77% by 2025). This may also include the creation of deposit refund schemes or separate collection targets for the extended producer responsibility schemes. 
  8. Awareness raising: an obligation to inform consumers and incentivise responsible behaviour on their part to reduce litter from single use plastic products. For example providing details of the availability of re-usable alternatives, re-use systems and waste management options; the impact of littering and other inappropriate disposal on the environment; and the impact of inappropriate disposal on the sewer network.  This applies to take away food containers, flexible packaging materials used for takeaway food, drinks bottles (including caps and lids), composite beverage packaging, drinks cups, tobacco products with filters and filters marketed for such use, wet wipes (personal care and domestic), balloons for non-industrial uses, lightweight carrier bags and sanitary towels, tampons and tampon applicators.

Hoping to foster a swift change in consumer behaviour, akin to that seen following the 2015 Directive on plastic bags, the EU is proud of the changes proposed and its direction of environmental travel. Commission First Vice-President Frans Timmermans commented, “Europe is setting new and ambitious standards, paving the way for the rest of the world”

When will this happen?

Whilst the measures are legally two years away from formally biting, businesses would be well advised to consider their application now. Whilst the future of Brexit remains unknown, there is every chance that the UK will have to implement these rules if there is an extended transition period following departure from the EU. Even absent that, DEFRA has been eager to push its own green credentials, with Secretary of State for Environment, Food and Rural Affairs, Michael Gove keen to champion the UK’s commitment to reducing levels of single use plastic.  

Perhaps more tellingly however, research by Waitrose found that 88% of people who saw the Blue Planet episode changed their behaviours as a result of what they had seen. There can be no question that as a buying public, we are becoming more demanding of suppliers in all aspects of their corporate social responsibility engagements; and this may be no different.

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“The way we make, use and throw away our clothes is unsustainable”.  So begins the recent report, “Fixing Fashion” published by the House of Commons Environmental Audit Committee (EAC).  In a blistering attack, the report laments our growing obsession with fast fashion and the health, safety and environmental impacts this is having around the globe.

Vital statistics

The garment industry is reportedly the third largest manufacturing sector in the world.  UK shoppers buy more clothes per person than any other country in Europe with the domestic industry worth £32 billion in 2017, growing at a rate of 1.6% higher than the rest of the economy.  Fuelled by celebrity endorsed social media campaigns and the growth of online retail, fashion’s performance has outstripped even high-tech sectors in recent years.

But behind the success story lurks an apparently less commendable reality with textile production understood to contribute more to climate change than the international shipping and aviation industries combined.  Most of the effects are felt in developing nations, which welcome the jobs but are ill-equipped to deal with the consequences. With global apparel consumption projected to rise by 63% by 2030 – the equivalent of more than 500 billion additional t-shirts – things have to change.

The report

Having heard evidence from a range of industry stakeholders, the EAC published its report on 19 February 2019.

The tenor of the report is plain from the opening summary, which talks of an industry which has, “marked its own homework for too long”.  Voluntary schemes and self-regulation are said to have failed, with the report calling for a tougher Government stance.

The outcomes

The report set out a list of very clear recommendations.

Health and safety:-

 

Modern slavery:-

 

 

 

Environmental measures:-

 

 

 

 

 

 

 

 

 

 

In response to the report Peter Maddox, Director of WRAP said:

“While the messages are hard hitting, we are grateful this lack of sustainability is being given such prominence by the EAC. Sunlight is the best disinfectant…and given the fact that only housing, transport and food have greater environmental impacts than clothing, it’s vital these issues are tackled.”

What next?

Attention has focussed on the potential for an Extended Producer Responsibility scheme and the attendant revenue that could generate.  But behind the headlines is a very detailed (and critical) root and branch review of the compliance picture currently evident in the sector.  Whilst the EAC has strong words for the industry, it also criticised the Government, which has been described as “too slow” to act with a myriad of examples given of inadequacies in current arrangements.

It is clear that it will take some time to implement any, let alone all of the EAC’s recommendations. This may be where the final piece of the jigsaw, the consumer, plays a part.  The question is whether increasing awareness of these issues will lead us to hold our fashion brands and retailers to a higher standard when it comes to sustainability and corporate social responsibility?

The full report is available to read here: https://publications.parliament.uk/pa/cm201719/cmselect/cmenvaud/1952/1952.pdf

If you have any queries on the issues raised by this update, please contact Rhian Greaves on 0161 393 9072.

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As we fall back into winter, the clocks change and with its usual annual synchronicity, another set of HSE statistics is published.  This year, as in others in recent memory, we see a largely consistent picture emerge of a nation outperforming its EU counterparts but failing to make any significant inroads into the headline KPIs upon which the HSE report is premised.

The figures typically promote lively debate about what is being done well and where there is room for improvement; and rightly so.  But away from the headline rates, there are already signs of change.  Whilst too early to found firm conclusions, they perhaps betray a changing and more open reporting culture which, if true, is to be welcomed.

The headlines

The “key facts” for 2017/18 remain largely unchanged from last year:-

Away from the headlines

We have seen a relatively consistent picture emerge over the past five years and many of the key performance indicators have, more or less, flat lined.  Whilst debate will no doubt ensue as to how we might do things differently to kick start another improvement in performance, we should not lose sight of the fact that, as a nation, our accomplishments in health and safety are outstanding when compared internationally.  For example, amongst EU counterparts, we have consistently the lowest fatal injury rate within the large EU economies.

Away from the static headlines though, there are some areas of flux:-

 

 

There has been a modest increase in the total fines collected, up 3.9%.  Whilst this suggests the judiciary are hitting their stride with the Sentencing Guidelines, it is worth reflecting on just how far we have come in the past few years.  In 2014/15 the average fine per offence was £29,000.  The figure for 2017/18 stands at a staggering £147,000, an increase of more than 400%.

What does the HSE say?

Commenting on the release, Martin Temple, HSE Chair said, “These figures should serve as a reminder to us of the importance to manage risk and undertake good health and safety practice in the work place.

“Great Britain’s health and safety record is something we should all be proud of, but there is still much to be done to ensure that every worker goes home at the end of their working day safe and healthy.

“Collectively we must take responsibility to prevent these incidents that still affect too many lives every year, and continue to all play our part in Helping Great Britain Work Well.”

Whatever your view on the statistics, these are sentiments we can all get behind.

If you have any queries or would like to discuss any of the matters raised, please contact Rhian Greaves on 0161 393 9072.

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