1. ARHM – Winter Seminar 28 November 2013

2. Health and Safety Update and Dos and Don’ts Esme Saynor and Rebecca Roffe – 28 November 2013

3. Overview General Health and Safety Update –The Health and Safety at Work Act –Assessing the risk –Working with contractors Health and Safety in Property Management –Safety of non-employees generally –Asbestos –Fire Safety General news Questions

4. GENERAL HEALTH AND SAFETY UPDATE

5. Regulatory Context Penalties for breaches of health and safety legislation are increasing steadily with the current record fine for a single offence being £15m imposed on Transco for breach of S.3 HSWA 1974. Shell Plc was fined almost £1m following an accident, even though nobody was injured. Even if prosecutions do not ensue, simply being investigated can cause a drop in an organisation’s morale. Having a good health and safety record can help if something bad does happen.

6. Health and Safety at Work Act 1974 – The Relevant Duties Section 2: Employers duties to employees Section 3: Employers duties to non-employees Section 4: Duties to non-employees in respect of premises Section 37: Offences by bodies corporate – ‘consent, connivance, neglect’

7. Embedding safety principles within a business Set the right ‘tone at the top’ HSE Guidance entitled ‘Leading Health and Safety at Work’ was originally published in 2007 in consultation with the institute of directors. Sets three ‘essential principles’ that underpin good health and safety performance: –Strong and active leadership –Worker involvement and engagement –Assessment and review

8. Employer Responsibilities s.2(1) “It shall be the duty of every employer to ensure, so far as it is reasonably practicable, the health, safety and welfare at work of all his employees”. s.3 “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, SFAIRP, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety”. –Contractors –Residents –Members of emergency services, neighbours, passers by and the public at large

9. What is risk? “Risk is a different word from the word danger and it has a different meaning. It means, in the circumstances of this case, a possible source of danger”. – R v Board of Trustees of the Science Museum [1993] The risk must be material, not fanciful or trivial –The Queen v Chargot Ltd [2007] Whether a risk is material is down to the jury to decide –Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R [2011] Imposes a duty on employers to think deliberately about things which are not obvious

10. What to assess? The duty to assess risk extends to: –Risks to young persons (18 years or below) –New or expectant mothers (within 6 months of giving birth) –Lone workers or those working overseas –Disabled people –Inexperienced workers Risk reviews relate to the extent and nature of the risks involved and the likelihood of creeping changes (as opposed to a major change which would automatically justify a review)

11. Risk Assessment – Dos and Don’ts The Health and Safety Executive – HSE – provide 5 steps to effective risk assessment: 1.Identify hazards 2.Assess the risks -Who might be harmed and how? 3. Eliminate or reduce the risks -Are existing precautions adequate or should more be done? -SFAIRP 4.Document all findings and actions taken 5.Undertake ongoing evaluation -Review your assessment every year or if there are any changes to equipment, substances or procedures. Revise if necessary

12. Penalties for breach of HSWA Health and Safety (Offences) Act 2008 increased penalties –Magistrates: £20,000 maximum fine –Crown Court: Unlimited fine –Some imprisonable offences –Disqualification orders –Costs orders

13. Employer Responsibility under the HSWA – General Dos and Don’ts DO have effective health and safety management systems –Risk assessment, systems of work, written policies and procedures –Roles and responsibility defined and understood –Provide information and training for employees & contractors –Provide the right workplace facilities DON’T forget to –Communicate the policies and procedures effectively –Review and update policies and procedures, monitoring and compliance –Keep records of training, compliance assessments and risk assessments –Review emergency procedures regularly

14. s.37 Health and Safety at Work Act 1974 “Where an offence committed by a body corporate is proved to have been committed: –with the consent or connivance of; or –as attributable to any neglect on the part of; any director, manager, secretary or other similar officer of the body corporate, he as well as the body corporate shall be guilty of that offence”. Individual Liability

15. Scope of s.37 duty What is connivance? –Doesn’t amount to actual consent to the offence but a failure to take any steps to prevent or discourage it i.e. ‘wilful blindness’. What is consent? –Must have known the material facts which constituted the offence and agreed to its conduct (R v Chargot [2007]). What is neglect? –Ask whether the accused failed to take steps to prevent an offence by the company and the taking of those steps fell within the scope of his duties. Who is a manager? –A manager is someone who is responsible for deciding corporate strategy and policy. (R v Boal [1992])

16. Corporate manslaughter Corporate Manslaughter and Corporate Homicide Act 2007 S.1 “An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised: –cause a persons death, and –amounts to a gross breach of a relevant duty of care it owed to the victim”.

17. Gross Breach “A breach of a duty of care by an organisation is a gross breach if the conduct alleged amounting to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances”. Jury to decide by considering a list of factors

18. Factors for the jury to consider The jury must take into account –Whether the organisation failed to comply with health and safety legislation –How serious that failure was –How much of a risk of death it posed The jury may take into account –Any attitudes, policies, systems or accepted practices in the organisation that were likely to have encouraged a management failure or to have produced tolerance of it. –Any health and safety guidance that relates to the alleged breach –Training of employees, adequacy of equipment

19. Penalties Corporate Manslaughter and Corporate Homicide Act 2007 –Unlimited fine –Publicity order –Remediation order –Compensation order –Prosecution costs order –Victim surcharge

20. R v Cotswold Geotechnical Holdings Ltd [2011] –First successful prosecution of a company under the Corporate Manslaughter and Corporate Homicide Act 2007 –Concerned the death of a young, unsupervised employee –Company fined £385,000, the equivalent of 250% of its turnover –On dismissing an appeal against the fine, the judge said that it was unfortunate but ‘unavoidable and inevitable’ that the company would probably have to go into liquidation to pay the fine

21. Managing Contractors and Outsourcing Need to satisfy self that contractors are competent, that they have sufficient skills and knowledge to do the job safely and without risks to health and safety. Great importance in choosing a competent team and working safely and efficiently together. The level of risk will depend on the nature of the job. Whatever the risk, need to consider the health and safety implications of the job you want done. This will involve: –Selecting someone suitable to do the job –Assessing the risks –Deciding what information, instruction and training is required –How co-operation and co-ordination between all parties is achieved –How the workforce is to be consulted –The level of management and supervision required

22. How can you manage the risk in contracting? DO –Give credit in tenders for levels of risk management and ethical policies –Consider having an overall policy to only contract with third parties who meet minimum standards –Check for ISO accreditation or use of international regulations DON’T –Use third parties who are not undertaking appropriate training

23. HEALTH AND SAFETY ISSUES IN PROPERTY MANAGEMENT

24. Control s.4 Health and Safety at Work Act 1974 –Where a person has, by virtue of a contract or tenancy, an obligation of any extent in relation to maintenance or repair to premises or access, that person will have control. –Such persons must provide for the safety of non-employees who come into contact with the premises. More than one person may have control over premises: Austin Rover Group Ltd v HM Inspector of Factories [1990] Therefore it is important to identify who has control in the contract by identifying who has the repairing obligation. Especially important in landlord-tenant relationships –A full FRI lease should put the repairing and maintenance obligations on to the tenant.

25. Asbestos Under the general health and safety regime, employers and property owners have duties to protect people from exposure to asbestos fibres There is also a specific legal duty to manage asbestos under the Control of Asbestos Regulations 2012, Regulation 4. Which buildings are affected? –All non-domestic buildings whatever type of business. –The common areas of residential rented buildings Regulation 4 imposes an obligation on the "dutyholder" to: –Determine whether asbestos is present in a building or is likely to be present by carrying out a risk assessment –Put in place action plans and systems to manage any asbestos that is or is likely to be present.

26. The “dutyholder” What is the “dutyholder”? –You are a dutyholder if you own, occupy, manage, or have any contractual responsibilities for maintenance or repair of non-domestic premises –Even in the absence of agreement, all parties which control access or maintenance of a building could still be liable where it can be shown that asbestos has not been managed. It may be that the primary responsibility for maintenance and repair rests with the tenant, but the freeholder will need to recognise that it may remain a dutyholder in certain circumstances: –e.g. Where a freeholder leases the whole of a property, the freeholder may retain some obligation to maintain or repair the structure/common parts There can be multiple dutyholders in any given scenario, although one party is usually expected to be primarily liable

27. Regulatory Reform (Fire Safety) Order 2005 –Applies to all non-domestic premises other than a restricted number of exceptions. –Includes vacant buildings –Includes external areas (car parks, loading bays etc.) The ‘responsible person’ has the duties under the Order Responsible person means –The employer, if the workplace is under his control –Otherwise the duties are extended to any person who has control of the premises –The owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or undertaking Fire safety

28. Duties To take general fire precautions to ensure, so far as is reasonably practicable the safety of employees In relation to non-employees, to take precautions that may reasonably be required in the circumstances of the case to ensure that the premises are safe To carry out a risk assessment and keep this under review Not only to keep fire exits clear and emergency lighting on!

29. Regulators' enforcement powers Alterations notice –Served if the enforcing authority believes that the premises constitute a serious risk if a change is made to premises –Where a notice has been served the responsible person must notify the enforcement authority of the proposed changes to the premises and the fire risk assessment Enforcement notice –Served if responsible person has not, in the opinion of the enforcing authority, complied with any provision of the order –Will require the responsible person to remedy the failure Prohibition notice –Served if the enforcing authority holds the opinion that the use of the premises involves or will involve a risk so serious that the use of the premises ought to be prohibited or restricted

30. Offences It is an offence for a responsible person to fail to comply: –With requirements, thereby placing one or more persons at risk of death or serious injury in case of fire –With any requirements of alteration, enforcement or prohibition notices –In relation to the provision of luminous tube signs (Regulatory Reform (Fire Safety) Order 2005 art.37) A person found guilty of one of these offences will be liable –On summary conviction to a fine not exceeding the statutory maximum; or –On conviction on indictment to a fine or to imprisonment for a maximum of 2 years

31. London Fire and Emergency Planning Authority v New Look Retailers Ltd (2010) A fire broke out on the second floor of New Look’s Oxford Street store resulting in 400 people being evacuated. The cause of the fire was unknown and there was no evidence that it was due to the negligence of New Look However, the court imposed a fine of £250,000 for not having an adequate risk assessment and £150,000 for inadequate safety training (plus costs) The case highlights the fact that there is now great scope for the courts to punish for a potential outcome of a fire

32. Health and Safety for Property Management – Dos and Don’ts DO –Ensure risk assessments are conducted and reviewed by appropriately qualified members of staff –Put in place clear lines of reporting and monitoring of compliance –Ensure improvements required to the buildings to keep them legally-compliant are done in a timely fashion and adequate records are kept of all works –Review/update asbestos surveys where required and make these available to all contractors coming on-site DON’T –Assume the tenant is always liable!

33. HEALTH AND SAFETY NEWS

34. Recent updates Review of Approved Codes of Practice New guidance for leaders on “Managing for Health and Safety” Fee for Intervention scheme

35. QUESTIONS?

36. The reality of Solving Leaseholder's problems Michaela Mason and Paul Pinder – 28 November 2013

37. How a conveyancing transaction works 1.Pre-contract stage 2.Post-contract (or pre-completion stage) 3.Post completion stage

38. Pre-contract stage Title Searches Buyer’s finances Draft contract/lease

39. Exchange of Contracts Post Contract and Pre-Completion Stage Draft lease Buyer’s lender? Preparation for completion Mortgage?

40. Post Completion Stamp Duty Land Tax Registration at Land Registry

41. Post-Contract Stage Draft lease Buyer’s lender Preparation for completion

42. Leases-The Main Elements Premises and Rights Rent Service Charge Insurance Alterations Alienation Landlord’s Obligations

43. Premises and Rights Flat Leases House Leases

44. Rent andService Charge Rent Payment Services Calculation and Payment

45. Insurance Buildings Insurance Third Party Liability

46. Alterations and Alienation Lease of part or whole? General restrictions - in last years of term - consent required - fees

47. Landlord’s Obligations Insurance Services Repair of Estate and/or Building Restrictions on Dealing Other Leases

48. BECKETT ROAD POZZO WOOD MCKELLENSHIRE DATE; 26/11/13 SCALE; 1:500 SITE & GROUND FLOOR

49. POZZO WOOD MCKELLENSHIRE DATE; 26/11/13 SCALE; 1:500 FIRST FLOORSECOND FLOOR

50. Questions?

51. Real Estate Dispute Resolution Paul Pinder, Senior Associate

52. Residential leases and disputes Claims for rent Limits on service charges Rights to manage Lease extensions

53. Ground rents Section 23(2) Landlord and Tenant Act 1927 Sections 47 and 48 Landlord and Tenant Act 1987 Section 166 Commonhold and Leasehold Reform Act 2002

54. Service charges Qualifying long term agreement £100 Works £250 Section 20 procedure

55. Right to manage Commonhold and Leasehold Reform Act 2002 Get together and oust the manager and appoint their own

56. Lease extensions Leasehold Reform, Housing and Urban Development Act 1993 Right to a new lease with a 90 year extension

57. Forfeiture Sections 167 and 168 Commonhold and Leasehold Reform Act 2002 Protection from Eviction Act 1977 Ability to serve a section 146 notice

58. Nuisance Serve a section 146 notice? Court route Capacity of tenant

59. Any questions?

60. When the Inspector Calls Lukas Rootman - 28 November 2013

61. Live issues

62. Asbestos Corporate Manslaughter Fire legislation Noise & Vibration Stress Work at Height Workplace transport Slips/trips Better Backs Construction

63. Legal framework

64. Criminal Negligence Nuisance Contract Competition etc. International Law EU Law UK Law Civil Criminal International Law HSW 74 relevant statutory instruments Public Human Rights Judicial Review Freedom of Information

65. “Legal” Benchmarks Principal –Acts eg HSWA 1974 –Regulations eg MHSW 1999 –Approved Codes of Practice eg COSHH ACoP –Guidance eg HSG 65 Other –Industry standards –In-house

66. The Regulators – England & Wales Health & Safety Executive Local Authorities Fire and Rescue Services (Environment Agency)

67. The Police Protocol regarding deaths at work PACE procedures relevant to all regulators

68. Coroners Independent Judicial Officers Inquire into deaths –violent –unnatural –sudden and unknown Inquest not a trial Coroner can report death to the appropriate authority

69. Coroner’s Inquests May be questioned by “Properly Interested Parties” –insurers –inspectors –public Juries held where death at work Verdicts –Not determine blame –Not identify Criminal/Civil Liability

70. Investigations

71. Stages of the investigation Prior to the visit During a visit During an investigation Interviews After a visit

72. Stage 1. Prior to a visit

73. Understand what the risk are –Health & Safety (Injury/harm/damage) –Business (Commercial, business continuity) Know the policies & systems –Company general –Site/Local –[Preparation is vital. First impressions count]

74. Think why will an inspector call? Routine inspection Response to an incident Pre-arranged investigative visit Assessment the risks in new businesses or premises Target certain geographical areas or sectors Random ‘spot checks’ on compliance Keep abreast of new developments and processes HSE training visit

75. Why you? HSE concentrate where the risks are highest Where they will have greatest impact Where they have evidence that performance is poor You operate in a hazardous industrial sector [Do any of these apply to you?]

76. Stage 2. During a visit

77. Manage the visit Agree and discuss the purpose of the visit Always work to & highlight your strengths Be professional & courteous Try and plan & agree points of contact [But remember…]

78. Powers of Inspectors* Entry at any reasonable time Take Constable if necessary Authorise others to enter eg gas, electricity Examine and make investigations * Note: Many more listed under HSW74’ s20.

79. Relationships It suited the last Inspector [But….] –Regulator free to change its mind –Need for constant review –Onus always rests with employer HSE is indemnified against all/part of any damages –act complained of within powers –duty as Inspector gave entitlement

80. Stage 3. During an investigation

81. Access to documentation Regulators’ powers –require production of relevant documents –privileged documents exempt –what is privileged? Obstruction of Inspector Note: House of Lords Decision "legal advice privilege“ and "litigation privilege".

82. Health warning Special care needs to be taken with –E-mails –SMS text messaging –Voice mail –Consultants reports –Glib post accident comments Every aspect of the accident investigation must be carried out professionally

83. Stage 4. During an interview

84. Interviews/Statements 3 types –Witness statements –Under Section 20 of HSWA 1974 –Under PACE Human Rights Implications Excluding evidence

85. Witness statements Primary purpose is to gather factual information –Voluntary under Criminal Justice Act 1967 –First hand details only – no hearsay –Signed copy given to witness

86. Section 20 Interviews Primary purpose is information gathering –Compulsory - no right of silence –Interviewee’s right to have someone present –Potential offence under Section 33 Protection given under principle of right not to self incriminate

87. PACE Interviews Primary purpose is to gather information as a suspect (individually/company) –A caution must be read –A right of silence exists – however adverse inference may be drawn –Legal advice must be taken Most H&S offences are not arrestable, so a PACE interview can be refused. (Always take legal advice before refusing)

88. Take note Check/ask what type of interview it is Think about the need for legal advice Be aware of conflicts of interest? Avoid any suspicion of obstruction.

89. Stage 5. After a visit

90. Always record all contacts & visits by regulator. All significant issues should be raised with line management Write up a summary of the visit Contact the HSE to confirm your understanding of the outcome of the visit If an enforcement is possible, be prepared to request legal advice

91. Internal Investigations

92. Why investigate Moral/Economic case –Not in dispute Legal requirements –General compliance (RIDDOR) –Arrangements (Plan:organise:control:monitor:review) Civil litigation Insurance

93. Basic principles Identify causes –Immediate: Underlying: Root Principles of HSE guidance should be followed –HSG65/HSG245/MHSW99 Company should adopt a consistent risk based approach Line managers must be trained in procedures

94. Accident reports – the smoking gun “We have been playing Russian Roulette…” “Accident waiting to happen” “We were lucky it wasn’t a much more serious injury…”

95. Reports Any documentation produced may be used in proceedings and may have liability implications Therefore, when recording incidents it is essential that records are: factual concise accurate [If the matter being reported is of a serious nature, legal advice on the level of reporting should be sought]

96. Access to documentation Regulators’ powers –require production of relevant documents –privileged documents exempt –what is privileged? Obstruction of Inspector Note: Recent House of Lords Decision "legal advice privilege“ and "litigation privilege".

97. Enforcement & Prosecution

98. Do Inspectors have to take action? Some discretion – enforcement policy Code for Crown Prosecutors Duty to the public Does the Human Rights Act make a difference?

99. Enforcement options Verbal advice Written advice Improvement/Enforcement notice Prohibition notice/Injunction Caution Prosecution Withdraw/modify licence, authorisation Note: Option selected dependent on facts (& politics) of each case

100. Key stages of prosecution Incident/contact Investigation Interviews Inquest Summons Disclosure eg Friskies schedules Expert investigations Plea Negotiations Court Sentencing

101. Aggravating features Failure to heed warnings Where defendant deliberately flouts legislation for financial reasons Offence results in fatality Previous similar offences

102. Mitigating factors Prompt admission of liability and guilty plea Steps taken to remedy deficiencies A good safety record Ready co-operation

103. Open Forum

104. Contact details LUKAS ROOTMAN Partner T +44 (0)114 279 4022 l.rootman@nabarro.com ESME SAYNOR Associate T +44 (0)114 279 4245 e.saynor@nabarro.com REBECCA ROFFE Associate T +44 (0)114 279 4040 r.roffe@nabarro.com