Climate Greenspace Health and Safety Legal Update: December 2020

Welcome to the Climate Greenspace Health and Safety Legal Update: December 2020 monthly email as part of your subscription to Waterman's Greenspace platform. The monthly updates show any:

new legal entries added to your register;
amendments to legal entries in your register; and
legal entries removed from your legal register.

It also contains links to new publications from Government and regulatory bodies and examples of relevant offences, highlighting how legislation is implemented and enforced in practice.
As well as receiving this update by email you will also find it saved on your Greenspace site under the Legal Register > Monthly Updates tab at the top of your Greenspace page.

Pertinent Legislation Amended in December 2020

EUROPEAN UNION (WITHDRAWAL) ACT 2018, AS AMENDED

TRADE AND COOPERATION AGREEMENT BETWEEN THE EU, EUROPEAN ATOMIC ENERGY COMMUNITY AND THE UNITED KINGDOM

The Trade and Cooperation Agreement between the EU and UK was reached on 24 December 2020 and came into force at the end of the post-Brexit transition period on 31 December 2020.

This summary reflects changes of interest to health and safety only.

What has changed?

The Agreement aims to set out the future relationship between the EU and UK, while providing a framework for future agreements. Elements of the agreement are relevant to the environment and climate change.

Level Playing Field and Competition

The Agreement applies conditions in order to ensure a level playing field for open and fair competition, to ensure that trade and investment take place in a way conducive to sustainable development.

Effectively, labour and social rights may not be reduced from the current levels where this impacts on trade. Should either party apply higher standards of protection if the other does not, ‘rebalancing measures’ may be applied. These measures would be used to address any trading advantage the party with lower standards may gain.

A panel of experts will be established to monitor whether the UK or EU have regressed in standards.

Future labour policy must take relevant scientific and technical information, international standards, guidelines and recommendations into account.

Offshore Risk and Safety

Information is required to be shared to ensure the safety and protection of offshore oil and gas operations, including preventing major accidents.

Aviation

Heading two, Title I of the Agreement concerns air transport. This aims to apply shared and cross-compatible arrangements for air transport and safety.

Health Security

The UK and EU are required to inform each other of serious cross-border threats to heath. This includes biological, chemical or environmental hazards that are life-threatening or otherwise serious. Where these threats exist, the EU may grant the UK access to the Early Warning and Response System (EWRS).

Chemicals

Annex TBT-3 applies requirements on the trade, regulation, import and export of chemicals.

Both parties must continue to apply the Global Harmonised System (GHS) of classification and labelling for chemicals. The UK or EU must provide the other party the opportunity to express views on proposed classifications.

EUROPEAN UNION (FUTURE RELATIONSHIP) ACT 2020

The European Union (Future Relationship) Act 2020 implements Trade and Cooperation Agreement between the UK and EU (‘Trade and Cooperation Agreement’) in part. This agreement was reached on 24 December 2020 and came into force on 31 December 2020.

What has changed?

Non-food Product Safety Information

Part 2 provides ongoing arrangements for the disclosure of non-food product safety information supplied by the European Commission or by UK authorities to the European Commission. These disclosures may be undertaken to ensure health and safety, protect consumers and/or ensure protection of the environment.

Use of Relevant International Standards

Schedule 4 amended legislation that sets out minimum standards on a range of products, including:

The amendments made revise references to standards for product conformity purposes. These allow the application of national standards adopted by the UK or international standards adopted by an international standardising body.

These international standardising bodies are those defined under the World Trade Organisation’s 1994 Agreement on Technical Barriers to Trade.

Access to International Road Haulage Markets

Licences required for international road haulage by UK hauliers must satisfy requirements under Annex Road-1 to the Trade and Cooperation Agreement.

Data from electronic registers of Great British and Northern Irish tachograph data may be disclosed where required by the Trade and Cooperation Agreement.

Powers to make Regulations regarding the Movement of Goods into or out of the UK

From 1 March 2021 the Act allows regulations to be made requiring monitoring or the control of goods that pose or might pose a risk to public health or public safety, national security or the environment.

PROTOCOL ON IRELAND/NORTHERN IRELAND (DEMOCRATIC CONSENT PROCESS) (EU EXIT) REGULATIONS 2020

The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 amended the Northern Ireland Act 1998 on 10 December 2020.

These regulations apply to Northern Ireland only.

What will change?

These regulations implement the mechanism for obtaining democratic consent in Northern Ireland to continue to apply the Protocol on Ireland and Northern Ireland (also known as the Northern Ireland Protocol). The protocol was agreed alongside the Brexit Withdrawal Agreement and avoids a hard border between Ireland and Northern Ireland by keeping Northern Ireland in the EU single market.

Democratic Consent Process

The Northern Ireland Protocol requires the Northern Ireland Assembly to vote periodically (commencing 31 December 2024) to either extend or end Northern Ireland’s alignment with EU law. This is termed the ‘democratic consent process’.

Amendments by the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 apply legal arrangements for the democratic consent process in Northern Ireland.

Articles 5 to 10 of the Northern Ireland Protocol will cease to apply if a vote by Northern Ireland’s political representatives concludes they are no longer desirable. The first consent process will take place in late 2024 and will be repeated every four or eight years depending on whether consent (if given) is given on a simple majority or a cross-community basis respectively.

If the Assembly does not pass the consent resolution by a simple majority, Northern Ireland’s alignment with EU law will come to an end two years later. If the Assembly passes the consent resolution, then Northern Ireland’s alignment with EU law will continue.

Recent Publications

New publications this month:

HEALTH AND SAFETY EXECUTIVE (HSE)

Chemicals Regulation

After UK Transition: Working with Chemicals

The HSE is launching a series of podcasts in January 2021 that will address the impacts of Brexit on various chemical regimes, including the Biocidal Products Regulation (BPR), Classification, Labelling and Packaging (CLP) and Prior Informed Consent (PIC) regimes, Plant Protection Products (PPP) and Registration, Evaluation, Authorisation and restriction of Chemicals (REACH).

A series of YouTube videos have also been made available, presenting changes to chemical regimes:

GB importers or downstream users of qualifying NI goods registered under EU REACH by a business in Northern Ireland (Northern Ireland notifications)

This guidance has been updated to reflect the final regime adopted for Northern Ireland notifications under UK REACH.

A specific regime has been set up to facilitate the import of chemicals from Northern Ireland to Great Britain under the UK REACH regime. A lighter touch regime of ‘Northern Ireland notifications’ will apply to these goods, but action will still be needed by importers in Great Britain or suppliers in Northern Ireland:

Where imports or supply from Northern Ireland were already underway prior to 1 January 2021, notifications will be required by 28 October 2021.
If imports or supply from Northern Ireland are to commence after 31 December 2020, the required notification must be submitted beforehand.

Goods and Conformity Requirements

Manufacture and supply of new work equipment

A series of guidance has been published on placing work equipment on the market. This reflects that the UK has now left the EU and that Great Britain is no longer subject to the single European market:

Placing goods on the market in Northern Ireland

The HSE has updated its guidance on placing manufactured goods, workplace equipment, machinery and civil explosives on the market in Northern Ireland. This reflects that Northern Ireland will remain aligned to EU conformity requirements, including on CE marking.

Protect vulnerable workers during the coronavirus (COVID-19) pandemic

This guidance to employers has been updated.

WELSH GOVERNMENT

Building regulations guidance: part B (fire safety)

This technical guidance document regarding the building control regime has been updated to strengthen requirements for assessments in lieu of fire tests.

OFFICE OF ROAD AND RAIL (ORR)

Brexit: New rules and legislation on rail transport from 1 January 2021

Three guidance documents have been published on the rail safety from 1 January 2021. This guidance reflects the impacts of Brexit:

EUROPEAN CHEMICALS AGENCY (ECHA)

Transfer of UK registrations to the EU to be completed by end of March 2021

Approximately 20% of EU REACH registrations by UK organisations have not be transferred to the EU and will be revoked.

For registrations that were transferred to the EU and remain outstanding, ECHA requires that these are finalised by 31 March 2021.

Offences

Fines after machine operator suffers serious leg injury

A supplier of titanium supplier has been fined after an employee sustained multiple fractures to his leg whilst operating a metal cutting band saw machine.

On 20 September 2017 an employee was seriously injured by a falling titanium plate at a site in Redditch. Almost 1.5 tonnes of titanium plate fell from the bed of a band saw, trapping his leg underneath. The sheets being cut were significantly larger than the machine bed.

An HSE investigation that the company had failed to undertake a suitable and sufficient risk assessment of material falling from the machine bed and had failed to put in measures to control the risk.

Penalty

VSMPO Tirus Limited pleaded guilty to breaching Section 2(1) of Health and Safety at Work Act 1974.

Section 2(1) requires employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees.

Penalty

VSMPO Tirus Limited was fined £200,000 and ordered to pay costs of £7,293.15.

Food manufacturer fined after hand injuries to agency worker

A yoghurt and dessert manufacturer has been prosecuted after an agency worker suffered severe injuries.

On 12 July 2016 an agency worker was working as a box maker on a machine known as a tray erector, at the company’s Minsterley site in Shropshire, when their fingers were caught in machinery. As a result of their injuries, the agency worker had to have their middle finger amputated below the second knuckle, lost half their index finger and had their third finger amputated to the first knuckle.

An HSE investigation found that the in-running nip on the tray erector was not properly guarded. The company had failed to guard dangerous parts of the machine to prevent access for more than seven years.

Breach

Müller UK & Ireland Group pleaded guilty to breaching Regulation 11(1) of the Provision of Use of Work Equipment Regulations 1998.

Regulation 11(1) requires employers to ensure effective measures are taken to prevent access to dangerous parts of machinery or rotating stock-bars, or that measures stop the movement of dangerous parts of machinery or rotating stock-bars before any part of a person enters a danger zone.

Penalty

Müller UK & Ireland Group was fined £66,000 and ordered to pay costs of £5,024.20.

Groundworks company fined after employee suffers multiple leg fractures

A groundworks company has been fined after an employee was injured when he was struck by a metal bow shackle whilst laying a sewer pipe.

On 19 July 2018 a machine cab operator was laying a High-Density Polyethylene foul sewer pipe weighing 20 tonnes with three other plant operators, who were positioned along a 240m trench to lift and drag the pipe. During this operation one of the slings being used to pull the pipe failed catastrophically. This caused a bow shackle linkage to be catapulted back towards the machine cab operator. The employee was hit in the leg by the solid metal shackle (which weighed 7.5kg), causing multiple fractures that needed extensive surgery.

An HSE investigation found that the company had failed to ensure that the operation was safely planned and carried out, with appropriate supervision in place.

Breach

Smith Construction Group Limited pleaded guilty to breaching Section 2(1) of Health and Safety at Work Act 1974.

Penalty

Smith Construction Group Limited was fined £55,440 and ordered to pay costs of £971.80.

Kenny Wintle
e: kenny.wintle@watermangroup.com

Waterman Infrastructure & Environment Ltd
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