New publications this month:

HEALTH AND SAFETY EXECUTIVE (HSE)

HSE to carry out inspections following safety alert

The HSE has announced that its current programme of workplace inspections will include reviews of welding fume control. This reflects a safety alert regarding mild steel welding fume, which was issued in February 2019. Scientific evidence shows that exposure to mild steel welding fume can cause lung cancer and possibly kidney cancer.

Brexit Guidance

The HSE’s Brexit guidance online has been updated to reflect that the UK has now left the EU.

BREXIT UPDATE

February saw the publication of the UK and EU’s negotiating mandates for post-Brexit trade talks. Both parties have set out what they intend to be included in the proposed trade agreement, which would apply from 1 January 2021.

The UK and EU’s respective positions on future arrangements that may affect health and safety legislation are described below.

The Future Relationship with the EU: The UK’s Approach to Negotiations

On 27 February 2020 the UK published its mandate for post-Brexit trade talks. This broadly aims to achieve legal autonomy and states that the UK will not negotiate “an arrangement where it does not have control of its own laws or political life”. It is intended that the mandate leads to a comprehensive free trade agreement (CFTA).

The UK Government aims to have a broad outline of an agreement in place by June, which would be finalised by September.

Elements of the mandate presenting aims of the agreement relevant to health and safety are presented below:

Labour Protection

• Reciprocal commitments to avoid weakening or reducing the level of protection provided by labour laws to encourage trade or investment.
• However, the mandate states that each party should be able to set its own labour priorities to adopt or modify its labour laws.

Chemicals

• The agreement should facilitate trade in chemicals and related products.
• This could include cooperation between EU and UK authorities (e.g. the European Chemicals Agency (ECHA)) after the end of the transition period.

• Data sharing arrangements and memorandums of understanding are proposed for the chemicals trade between UK authorities and ECHA.

Conformity Assessment

• The proposed agreement would include measures to mutually recognise product conformity assessment results from either party. This would include bodies authorised to test against requirements of the UK and EU.
• Transitional measures to automatically recognise conformity assessment bodies in the EU and UK are proposed.
• Arrangements to mutually recognise certificates of conformity for marine equipment are proposed.

Sanitary and Phytosanitary (SPS) Control

• Maintaining SPS measures reflecting existing standards to protect human, animal and plant life and health.
• Recognising health and pest status in the UK and EU and applying suitable checks and emergency measures to control pathogens.
• An ‘equivalence mechanism’ is proposed to manage equivalent biosecurity standards in order to achieve market access. International standards would be applied under the agreement.

Motor Vehicles and Parts

• The agreement should enable relationships between the EU and UK to mutually recognise UN standards and type approvals for these products.
• Data sharing arrangements and memorandums of understanding are proposed between UK authorities and the European Chemicals Agency.

Aviation Safety

• A bilateral aviation safety agreement should be established between the UK and the EU, recognising safety standards and cooperation between the Civil Aviation Authority and EU Aviation Safety Agency (EASA).

European Union Mandate for Post-Brexit Trade Talks

On 25 February 2020 the EU published its mandate for post-Brexit trade talks. This defines intended principles for a partnership agreement with the UK following the end of the post-Brexit transition period.

The EU aims to have as close as possible a partnership with the UK in the future. The mandate aims to ensure a level playing field for open and fair competition, including on labour and product safety standards.

Elements of the mandate are expected to be controversial, given the UK’s mandate published on 27 February 2020 and public statements by members of the Government.

Elements of the mandate relevant to health and safety are presented below:

Labour Standards

• Ensuring that the level of labour and social protection (including on occupational health and safety) is not reduced below the level applicable at the end of the transition period.
• This would need to be supported by effective enforcement in the UK

Product Safety

• The EU proposes that the conformity assessment-based process for the standardisation and safety of products should continue.

Aviation Safety

• Continued cooperation in certification and monitoring of aeronautical products in order to limit duplication of assessments.

Data Protection

• The EU’s vision for the partnership includes a commitment to high levels of personal data protection. This would include respecting the EU’s data protection rules and decision-making process.
• Under the intended partnership, adequacy decisions on data protection would remain central to the continued transfer of data between the UK and EU, on law enforcement and on cooperation in criminal matters.

Director of construction company sentenced for safety failures

A former director of a company has received a suspended prison sentence after failing to comply with Prohibition Notices and for carrying out unsafe work at height during roofing work on a new build house.

Between July and December 2018, the former director of Bradford Builders (UK) Ltd was in control of construction work at the site of two semi-detached houses in Oldham.

HSE inspections in July and August 2018 led to prohibition and improvement notices being issued for multiple health and safety failings, including unsafe work at height.

A HSE inspection on 6 December 2018 was undertaken following a report of unsafe roof work the previous week. Roof work was being carried out from a scaffold at the rear of the building. Two further prohibition notices were served regarding two separate scaffolds at the site due to missing guardrails and scaffold boards and the resulting risk of falls.

The investigation found that the director had failed to comply with prohibition notices issued after the previous visits and had not taken suitable and sufficient measures to prevent falls from height.

Breach

The man pleaded guilty to breaching Regulation 6(3) of the Work at Height Regulations 2005 and two counts of Section 22 of the Health and Safety at Work etc. Act 1974:

• Regulation 6(3) of the Work at Height Regulations 2005 requires employers to take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury.
• Section 22 of the Health and Safety at Work etc. Act 1974 enables the HSE to issue prohibition notices, which state activities that may not be undertaken until the issues identified are remedied.

Penalty

The man was sentenced to eight months imprisonment suspended for two years, 200 hours unpaid work in the community and ordered to pay costs of £5,000.

Man sentenced for threatening HSE Inspector

A man has been fined after he was found to have threatened an HSE inspector.

On 23 August 2019 an HSE inspector was conducting an inspection of a waste and recycling site belonging to the man. During the inspection, the inspector became aware of an individual pointing at him. The individual then crossed the yard towards the inspector, shouting obscenities.

The inspector was subjected to repeated verbal abuse and offensive language and was physically threatened when the man stepped towards him and raised his fist as he aggressively told him to leave.

Breach

The man pleaded guilty to an offence under Section 4 of the Public Order Act 1986:

• Section 4 makes it an offence to:
  • use abusive or insulting words or behaviour to another person; or
  • distribute or display to another person any writing, sign or other visible representation which is threatening, abusive or insulting.

Penalty

The man was ordered to pay £100 compensation and costs of £85. He also received a conditional discharge of six months.

Fines for company that exposed workers to the risk of dermatitis

An engineering company has been fined for failing to control the risk of its employees developing dermatitis due to metalworking fluid exposure.

Between October 2017 and January 2019, employees of Lymington Precision Engineers Co Limited were exposed to metalworking fluid while working on equipment including lathes and milling machines. Exposure to metalworking fluid can lead to the development of dermatitis and asthma and can have serious, life-changing health effects.

An HSE investigation found the company had failed to ensure adequate measures were in place for the control of exposure to metalworking fluids, exposing their employees to the risk of contracting dermatitis.

Breach

Lymington Precision Engineers Co. Limited pleaded guilty to breaching Regulation 7(1) of the Control of Substances Hazardous to Health Regulations 2002:

• Regulation 7(1) requires that every employer ensures exposure of employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.

Penalty

Lymington Precision Engineers Co. Limited was fined £20,000 and ordered to pay costs of £4,447.46.