New publications this month:

HEALTH AND SAFETY EXECUTIVE (HSE)

Safety Bulletins

During November 2018 the HSE published two safety bulletins regarding the topics below:

• Revision of Standards for Powered Doors, Gates & Barriers for vehicular use; and
• BendPak two post vehicle lifts – safety issues relating to locking mechanisms

EUROPEAN CHEMICALS AGENCY (ECHA)

New web pages to prepare companies for UK’s withdrawal from EU

ECHA has provided updated guidance on its website regarding the impact of Brexit. This guidance is aimed at companies that manufacture or use chemicals in the UK or the remaining EU Member States.

BREXIT UPDATE

The text of a withdrawal agreement was agreed with the EU on 25 November 2018. Although agreed with the EU, this must be approved as part of a vote in Parliament on 11 December for it to be implemented.

The outcome of the 11 December vote will be covered in the December 2018 monthly update.

26 NOVEMBER WITHDRAWAL AGREEMENT

If ratified by parliament, the agreement will affect environmental obligations applicable to the UK.

TRANSITIONAL PERIOD

The withdrawal agreement applies a transitional period, which is due to end on 31 December 2020. During this period, the UK will retain EU market access on existing terms.

As a result, EU occupational and product safety policy would continue to operate in a broadly unchanged way.

Chemical Regulation during the Transitional Period

The transitional period has impacts on regimes including the regulation of chemicals, plant protection products and biocidal products.

Therefore, chemicals already registered, approved, authorised or classified in advance of 29 March 2019 would remain valid. The UK would be able to register new chemicals or products and would be required to recognise those being processed by EU Member States.

The HSE has stated that it would not be able to act as a ‘leading authority’ to conduct certain assessments under the REACH Regulation or regarding biocides and plant protection products but would continue to process plant protection and biocidal product applications.

BACKSTOP / SINGLE CUSTOMS TERRITORY

The agreement would establish a “single customs territory”: a backstop between the EU and UK that would apply after the end of the transitional period if no trade deal is reached between the UK and the EU.

As a result, the backstop may not be applied, and the respective sections of the agreement would not come into force.

Single Customs Territory Rules

Common requirements are applied on matters including environmental protection and health and safety under the backstop.

A ‘Joint Committee’ would be established, comprising UK and EU representatives. This committee would be required to oversee and facilitate the application of the backstop.

Health and Safety implications of the Backstop

Should the backstop come into effect, the EU and UK are required to ensure that the protection of labour and social standards is not reduced below common standards applicable at the end of the transition period on 31 December 2020.

These standards specifically concern:

• fundamental rights at work;
• occupational health and safety;
• fair working conditions and employment standards;
• information and consultation rights at the company level; and
• restructuring.

The application of these common standards would be monitored and enforced as necessary within the single customs territory.

POLITICAL DECLARATION SETTING OUT THE FRAMEWORK FOR THE FUTURE RELATIONSHIP BETWEEN THE EU AND THE UK

A declaration has been published outlining the EU and UK’s intentions for their future relationship once the UK leaves the EU. This accompanies the withdrawal agreement.

With respect to health and safety, the declaration commits the UK and EU to retain autonomy and the ability to regulate economy activity for purposes of public health, safety and consumer protection.

Although no commitment is made, the declaration states that the possibility of UK cooperation with EU agencies will be explored. Agencies named include the European Chemicals Agency (ECHA) and European Aviation Safety Agency (EASA).

The declaration also states that a future relationship is required to support cooperation of maritime safety and security, including exchanges of information between the European Maritime Safety Agency and UK Maritime and Coastguard Agency.

HSE: BREXIT CHEMICALS GUIDANCE

The HSE has published online guidance on how the regulation of chemicals will continue after the UK leaves the EU and during the planed transitional period, which would run until 31 December 2020.

The guidance commits to continued effective and safe management of chemicals after the UK leaves the EU.

Fines after worker seriously injured when carrying out a lifting operation

A principal contractor has been fined after an employee of a constituent company was severely injured while carrying out a lifting operation.

On 11 April 2015 an employee of Forth Crossing Bridge Constructors (FCBC) was undertaking a lifting operation to move two large crane mats within Rosyth Dockyard, when the employee suffered severe injuries.

An HSE investigation found the work activities to move the crane mats was a complex and non-routine lifting operation which had not been planned by a competent person. It was not appropriately supervised or carried out in a safe manner. The chains being used were not suitable as their reach distances were too short for the distance between the lifting points on the crane mat.

Breach

FCBC pleaded guilty to breaching Regulation 8 of the Lifting Operations and Lifting Equipment Regulations 1998:

• Regulation 8 requires that lifting operations involving lifting equipment are properly planned by a competent person, appropriately supervised and carried out in a safe manner.

Penalty

FCBC was fined £10,000.

Three companies fined after security guard fatally injured

Associated British Ports, DFDS Seaways PLC and ICTS (UK) Ltd have been fined after a security guard was fatally injured when he was struck by an articulated vehicle.

On 9 September 2015 a security guard employed at the container terminal at Immingham Docks, approached an HGV which was entering a gate. The guard walked in front of the vehicle. As the guard was not visible to the driver he was dragged underneath as it turned towards a warehouse. He sustained multiple injuries and died at the scene.

An HSE investigation found that Associated British Ports and DFDS Seaways PLC had failed to carry out a suitable and sufficient workplace transport risk assessment and had not considered the risks that vehicles entering, leaving and manoeuvring in the gate area posed to others.

Associated British Ports required the security guard at the gate to stop traffic and check pedestrians and vehicles entering the terminal but had failed to provide means to do so safely as there was no signage indicating drivers should stop and report to security, and no safe facilities.

ICTS (UK) Ltd was found to have failed to provide adequate training, and the risks of stopping traffic without any physical protective measures in place had not been considered.

Breaches

Associated British Ports pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc. Act 1974.

DFDS Seaways PLC pleaded guilty to breaching Section 2(1) and 3(1) of the same Act.

ICTS (UK) Ltd pleaded guilty to breaching Section 2(1) of the same Act.

• Section 2 (1) requires that every employer ensures, so far as is reasonably practicable, the health, safety and welfare at work of all employees.
• Section 3(1) requires that employers conduct their activities in a manner to ensure, so far as is reasonably practicable, that persons they do not employ are not exposed to risks to their health or safety.

Penalties

Associated British Ports was fined £750,750 with £9781.52 costs.

DFDS Seaways PLC was fined £166,670 with £9766.02 costs.

ICTS (UK) Ltd was fined £500,000 with £9338.82 costs.

London property developer fined for failing to undertake an asbestos survey

Pascal Huser Design & Build Ltd has been sentenced after failing to carry out an asbestos survey prior to undertaking extensive refurbishment works.

On and before 6 December 2017 the company undertook construction work at a property in Fulham, London. A routine HSE inspection identified that the company had failed to carry out an asbestos survey for the property.

A subsequent HSE investigation found that the company removed a boarded asbestos ceiling without taking any precautions to prevent workers being exposed to this health risk.

Breach

Pascal Huser Design & Build Ltd pleaded guilty to breaching Regulation 5 of Control of Asbestos Regulations 2012:

• Regulation 5 prohibits work liable to expose employees to asbestos unless a suitable and sufficient assessment of asbestos has been carried out. Where there is doubt to whether asbestos is present, the employer must assume asbestos is present and that it is not chrysotile alone and apply the corresponding requirements under these regulations.

Penalty

Pascal Huser Design & Build Ltd was fined £16000 and ordered to pay costs of £4940.40.