Regulatory Winter Newsletter
Rhian Greaves

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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