People & Places – What will the next ten years of Health & Safety enforcement look like?
The Health and Safety Executive (HSE) has given us some idea of how it thinks the future will look in its ten-year strategy “Protecting People and Places” which was published at the start of the summer. The strategy sets out the HSE’s priorities in the years to come when ensuring that workplace risks are adequately managed and, if they are not, those responsible are both held to account and bear the cost.
The new strategy marks 50 years since the Robens report which led to the creation of the HSE, and comes at a time of great change. Recent years have seen significant shifts in the way we work, including increasing numbers of flexible “gig” workers, tightening environmental responsibility and new technology, and the COVID-19 pandemic. As the world changes, so too must the way businesses are regulated. The HSE recognises that these changes will present risks that some businesses may not be familiar with, but emphasises the importance of not preventing innovation and progress by the way in which the management of these risks is regulated.
New ways of working
Legislative changes are already being made. In recognition of the prevalence of the “gig” economy and following the emphasis placed on PPE during the COVID-19 pandemic, the Personal Protective Equipment at Work Regulations (2022) have been brought into force, extending an employer’s duty to provide PPE free of charge to these more casual workers, where that duty was previously owed only to employees working under a contract of employment.
Mental health and stress
The HSE recognises that great strides have been made to prevent non-fatal work-related injury in Great Britain, but contrasts that against increasing work-related ill-health including stress, depression and anxiety. The HSE intends to reduce this trend by delivering interventions that make a real difference. Whilst we do not know what those interventions will be, they may be similar to the “core standards” framework of actions set by the “Thriving at Work” report commissioned by Mind and endorsed by the HSE, including greater mental health awareness, encouraging conversations and providing working conditions with a healthy work life balance and opportunities for development.
Greener energy also brings with it safety implications – a risk that will need to be managed looking forwards. The increased push towards newer, cleaner technologies such as hydrogen for decarbonisation will result in novel issues for the HSE to grapple with.
Sustainable development as an objective has been front and centre of the planning system for years, with the concept of “sustainability” becoming more familiar to businesses. Sustainability is encouraged through planning policy and the inclusion of planning conditions. These include, the approval of circular economy statements, asking, for example, what is being demolished and the carbon output of that demolition, which materials are being used for construction, and what percentage is recycled? There is a developing tension within embodied carbon between demolition and refurbishment, as well as the carbon efficiency of a future operation.
Net zero strategies are often focussed on energy output, decarbonisation, and “clean” energy systems being in place (for example, heating in buildings). Hydrogen power is a relatively new technology which comes with its own hazards, however, it is being increasingly touted as a viable alternative to oil and gas. A significant issue, and the likely reason the HSE has focussed on hydrogen in its strategy, is the lack of a co-ordinated regulatory regime concerning hydrogen energy. We are, however, seeing HSE priorities and legislative change (for example, the Energy Security Bill, introduced to Parliament on 6 July 2022) coming forward to meet these challenges.
Whilst it may seem that policy emphasis is on the private sector’s responsibility for the environmental impact of the modern economy, that burden also rests with Government bodies. The Office of Environmental Protection is principally tasked with monitoring environmental improvement progress by Government and other public bodies in accordance with the Government’s Environmental Improvement Plan and targets. The OEP also has investigatory and enforcement powers to rely on where public authorities have failed to comply with environmental laws1 .
Overall, we can expect a much greater regulatory presence regarding Net Zero strategies.
Following the Grenfell tragedy, the Building Safety Regulator (“BSR”) has been formed by the HSE. The BSR will regulate specified residential, health and care high-rise buildings of seven or more storeys, overseeing the safety and standards, encouraging competence of those in the industry and implementing a new regulatory framework for those buildings. That framework will create statutory responsibilities and accountability for the design, build, refurbishment and occupation of buildings, as well as a register of occupied high-rise buildings and the relevant inspectors and control approvers.
The BSR has a number of duties under the Building Safety Act, including an obligation to provide assistance and encouragement to relevant persons in order to facilitate building safety.
The definition of relevant persons includes those persons upon whom duties will be imposed by the Building Act 1984 (as amended by Part 3 of the Building Safety Act once these sections come into force) i.e. ‘Duty Holders’. The intention is for these Duty Holders to be identified in the same way as existing Duty Holders under the CDM Regulations 2015 (i.e. client, principal designer, principal contractor, contractors, and designers). It is proposed that these Duty Holders will have responsibility for ensuring the Building Regulations are met during the design and construction phase for all building works, not just those in higher risk buildings.
The government’s reasoning for these proposed changes to the Duty Holder regime is that while CDM Regulations are considered to be working well, they are aimed at managing the health and safety of persons during the works, and do not specifically address issues of ensuring the actual building safety or compliance with building regulations either in higher risk buildings or in other building work. The proposed regulations are intended to plug that gap.
The Government previously published draft regulations setting out how such responsibilities would be allocated between the Duty Holders for any building work under the Building Regulations 2010 (not just those classed as ‘higher risk’ buildings). However these draft regulations have been withdrawn and the government is currently consulting on the proposed regime as part of its wider consultation on the proposed building control regime for higher risk buildings (which closed on 12 October 2022).
The proposed Duty Holder regulations and higher risk building control regime require the relevant Duty Holder to be competent, and the Government has recognised that there is a need for significant upskilling across the industry to enable regimes to work effectively. The Building Safety Act amends Schedule 1 to the Building Act 1984 so that the Secretary of State will have powers to impose competence requirements on the Principal Designer and Principal Contractor, and any other persons, and to impose duties on those appointing them to ensure they meet the competence requirements.
An interim industry competence committee has already been established within the HSE so that HSE can monitor and help to improve industry competence. HSE will continue to publish guidance and advise the industry and the Regulator on industry competence.
The BSR also has much wider statutory responsibilities during the design, construction, and occupation phase of relevant building works, that we have touched on in previous articles: Construction Update on Building Safety and the Golden Thread | Charles Russell Speechlys).
Also relevant is the Fire Safety Act 2021, which commenced on 16 May 2022 and amended the Regulatory Reform (Fire Safety) Order 2005, clarifying that responsible persons for multi-occupied residential buildings must manage and reduce the risk of fire for the structure, external walls, and entrance doors to common parts. Responsible persons should undertake regular reviews of the fire risk assessment of the building in view of these risks2.
The way ahead
The HSE’s ten-year strategy shows a keen awareness of the broader scope to the risks to health and safety both now and in the future.
Businesses should ensure that their own health and safety strategy is sufficient to cover changes to the way we work, and the risks faced because, despite the huge amount of change, where obligations are breached, enforcement action may be brought by the HSE against both the business and in certain circumstances, individuals within those businesses. If convicted, fines can be significant because they are linked to a company’s turnover. Where an individual is convicted, the Courts have the power to send them to prison.
1 See here for more information: The OEP: objectives, strategy, and implementation | Charles Russell Speechlys and Office for Environmental Protection - The Environment Act 2021 (foleon.com).
2 The Government has released a “prioritisation tool” to assist with developing a strategy to prioritise their buildings when reviewing risk assessments; Prioritise updating your fire risk assessments as a Responsible Person | Fire Risk Assessment Prioritisation Tool (bpt.homeoffice.gov.uk).