Health and Safety Updates

1. Health and Safety Updates IOSH Essex Branch Meeting 10 April 2019

2. Contents • Violence at work • Your duties regarding legionella • Steps to take following an asbestos release • Drug and alcohol testing at work • Recent fines and sentencing update

3. Violence at work

4. Overview • Violence at work - HSE definition • Worrying increase in the number of emergency workers subjected to work-related violence • Assaults on Emergency Workers (Offences) Act 2018 • Case Study - NHS Trust fined after two nurses stabbed at work • Reporting non-consensual violence at work under RIDDOR

5. Violence at Work HSE's definition of work-related violence: "any incident in which a person is abused, threatened or assaulted in circumstances relating to their work"

6. Worrying increase in the number of workers subjected to work-related violence Statistics Educational Staff - In 2016/17, 477 non-fatal injuries were reported to the HSE, 10% of which were caused by "acts of violence" compared with 385 in 2012/13 Ambulance Staff - 2013/14 to 2016/17 reported physical assaults increased by 34% Prison Officers - 9,485 assaults on prison staff from June 2017 to June 2018 - up 27% from previous year British Retail Consortium's Retail Crime Survey, March 2018 - Incidents of violence against staff causing injury in 2017 doubled from 2016 to six per 1,000 members of staff

7. Worrying increase in the number of workers subjected to work-related violence (Cont.) Union of Shop, Distributive and Allied Workers (Usdaw) Freedom from Fear survey 2017: 2/3 of shop workers abused in 2017 42% were threatened More than 265 assaults every day 25% increase in abuse Threats rose by 38%

8. Assaults on Emergency Workers (Offences) Act 2018 • Assaults on Emergency Workers (Offences) Act 2018 (the "Act") came into force on 13 November 2018 • Section 1 - The Act creates a new specific offence of assault or battery against an emergency worker • Maximum prison sentence for assault/battery against an emergency worker extended from 6 months to 12 months - Section 39 (1) and (3) Criminal Justice Act 1988 amended by Section 1(5) (a), (b) of the Act • Section 2 - Aggravating Factors - Committing assault or battery against an emergency worker must be treated as an aggravating factor when determining the seriousness of the offence • Section 3 - Broad meaning of 'emergency worker' - Immaterial whether the employment/engagement is paid or unpaid

9. Case Study - NHS Trust fined after two nurses stabbed at work The Incident 17 July 2016, Burgess Ward, the Bracton Centre, Kent – A medium secure unit Francis Barrett, a health care assistant, was preparing food in the kitchen when he left to speak to a service user As Francis left the kitchen by unlocking and opening the door a service user nearby pushed him back into the kitchen, forcing him onto the floor and stabbed him multiple times in the chest and stomach using a kitchen knife Francis had left on the work surface Julius Falomo, a psychiatric nurse, saw the attack and shouted at the service user to stop. The service user left Francis to attack Julius Julius was then stabbed several times Armed police arrived and arrested the service user Francis Barrett and Julius Falomo both suffered severe injuries as a result of multiple stab wounds

10. Case Study - NHS Trust fined after two nurses stabbed at work (Cont.) HSE Investigation No patient specific risk assessment in place to identify risks and the measures required to control these risks prior to patients (many of whom are high-risk) being admitted to the ward The use of knives on an acute ward was fundamentally unsafe – staff were entering and exiting the kitchen frequently whilst knives were in use No instructions or control measures in place regarding kitchen knives Following the incident, all knives were removed from acute wards HSE Position The risk of violence posed by patients was entirely foreseeable. "The treatment of patients in medium secure psychiatric units involves an inherent risk of violence and aggression… However, the Trust nevertheless had a duty to ensure the safety of its staff and its patients so far as was reasonably practicable." "There were relatively straightforward steps that could have been taken prior to the incident to prevent it happening. These included carrying out a patient specific risk assessment prior to admission to the ward; the removal of knives from acute admission wards… and proper training in search techniques."

11. Case Study - NHS Trust fined after two nurses stabbed at work (Cont.) Prosecution and Fine 20 December 2018 - NHS Oxleas Foundation Trust pleaded guilty, at the Old Bailey, to breaching Section 2(1) and 3(1) of the Health and Safety at Work etc. Act. The Trust was fined £300,000 and ordered to pay costs of £28,000.

12. Violence at Work HSE Guidance INDG69 Advocates conventional approach

13. Your duties regarding legionella

14. Key Legal Duties • Control of Substances Hazardous to Health Regulations 2002 • Regulation 6 - Employer duties not to carry out any work which is liable to expose any employees or non-employees to any hazardous substance unless risk has first been assessed and appropriate steps taken. • Regulation 7 - Employer duty to prevent exposure of employees and non-employees to hazardous substances, or, where prevention not reasonably practicable, to adequately control it. • Health and Safety at Work, etc. Act 1974 • Section 2 - Employer duties towards employees. • Section 3 - Employer duties towards persons other than employees. • Section 4 - Duties towards persons other than employees who use premises you control as a workplace. • Common law duty of care

15. What does this mean in practice? • "Do I really have to carry out a legionella risk assessment? I mean really." • "Yes, you really do, but… • The key is PROPORTIONALITY." • Where the assessment demonstrates there is no reasonably foreseeable risk or that risks are insignificant and unlikely to increase, and are properly managed, no further assessment or measures are needed. For example: • small building without individuals especially ‘at risk’ from legionella bacteria (e.g. smokers, people suffering from chronic respiratory or kidney disease, diabetes, lung and heart disease, or anyone with an impaired immune system); • where daily water usage is inevitable and sufficient to turn over the entire system; • where cold water is directly from a wholesome mains supply (no stored water tanks); • where hot water is fed from instantaneous heaters or low volume water heaters (supplying outlets at 50⁰C); or • where the only outlets are toilets and wash hand basins (no showers). • In these circumstances: • record conclusions; and • review annually or if you become aware of a change in circumstances.

16. Higher risk workplaces • The risk may be increased, for example, if: • the water temperature in all or some parts of the system may be between 20-45⁰C; • it is possible for water droplets to be produced and, if so, they can be dispersed; • water is stored and/or re-circulated; or • there are deposits that can support bacterial growth, such as rust, sludge, scale, organic matter and biofilms. • Can the use of the relevant water systems be avoided? • If not, scheme of control is needed, which may include: • using temperature control to ensure water is stored at 60⁰C; • removing redundant pipework; • cleaning and disinfecting; • regular sampling; and • emergency procedures.

17. Recent cases • June 2018 - Bupa fined £3m after an elderly resident died from Legionnaires’ disease at nursing home in Brentwood. • May 2018 - Faltec Europe (car parts firm) fined £800,000 following an outbreak of Legionnaires' disease at its South Tyneside factory which caused 4 employees an one nearby resident to become ill. • April 2018 - Royal United Hospital, Bath fined £300,000 after an elderly patient died from Legionnaires' disease. • July 2015 - JTF Warehouse (DIY retailer) reported to have paid over £200,000 in damages to the relatives of three men who died after contracting Legionnaires' disease from a hot tub on display at its premises in Stoke.

18. Steps to take following an asbestos release

19. Case Study • Company commissioned asbestos survey in 2005. • Survey identified asbestos in various locations - recommendations: • Remove high risk asbestos debris; • Repair (encapsulate) medium risk material and then manage in situ (label and inspect); and • Manage low risk material in situ (label and inspect). • Removal and encapsulation works take place (evidenced by hazardous waste consignment notes and invoice from licenced contractor). • Register and management plan created but never updated and no evidence of review. • No record kept of any inspections. • Suspicious dust discovered in workshop used by employees and visited by contractors. • Unclear as to when dust first appeared.

20. Basic Legal Duties • Control of Asbestos Regulations 2012 • Regulation 4 - Management duties; • Regulation 11 - Duties to prevent or reduce exposure to asbestos; • Regulation 15 - Arrangements to deal with accidents, incidents and emergencies; and • Other potential duties? • Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013 • Regulation 7 - Report dangerous occurrences. • "Responsible Person" must notify regulator by the quickest practicable means and send a report to them within 10 days of the incident. • Health and Safety at Work, etc. Act 1974 • Section 2 - Duties towards employees • Section 3 - Duties towards persons other than employees • Common law duty of care • Chandler v Cape (2012)

21. "Wife was ‘negligently exposed’ to asbestos when she washed clothes" - The Times 26 July 2018

22. What should the employer do? • Close off area and have the dust laboratory tested. • Air testing. • Notify insurer. But which one? • Make a RIDDOR notification? • Has there been an accidental release or escape of asbestos fibres into the air in a quantity sufficient to cause damage to the health of any person? • Precautionary report? • Notify: • Current employees who may have been exposed; • Former employees who may have been exposed; and • Contractors and other visitors who may have been exposed. • How far back do you need to go? • Active management of asbestos since 2005 would have avoided (or, at least, substantially reduced the risk of this happening).

23. Drug and alcohol testing at work

24. Key Legislation Health and Safety at Work Act 1974 Section 2 (employees) and Section 3 (non-employees) Misuse of Drugs Act 1971 – Makes it an offence for someone to knowingly permit the production, supply or use of controlled drugs on their premises except in specified circumstances (such as where permitted by regulations or by licence from the Secretary of State) Transport and Works Act 1992 Section 27 - Makes it an offence for certain workers to be unfit through drugs and/or drink while working on railways, tramways and other guided transport systems. Road Traffic Act 1988 – Sections 4, 5 and 5A – Make it an offence to: Drive a vehicle on a road or other public place when unfit to drive because of drink or drugs Drive or attempt to drive a vehicle on a road or other public place, or be in charge of a motor vehicle after consuming alcohol or a specified controlled drug (of a quantity above the legal limit)

25. Key Legislation (Cont.) Management of Health and Safety at Work Regulations 1999 Regulation 3(1)- Places a duty on an employer to carry out a suitable and sufficient risk assesment of: (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking Regulation 6(1) – Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment. Similar to the Misuse of Drugs Act 1971 in that an employer can be prosecuted if they knowingly allow an employee to continue working while under the influence of alcohol or drugs and their behaviour places the employee themselves or others at risk

26. Overview • Health and Safety Executive (HSE) Guidance on drug and alcohol screening • Information Commissioner’s Office (ICO) Employment Practice Code – Guidance for Employers on Good Practice when carrying out Drug and Alcohol Testing • European Workplace Drug Testing Society (EWDTS) Guidelines • ACAS Guidance on Drug and Alcohol Policies • Case Study – Bus Driver Succeeds in Unfair Dismissal Claim • Key Legislation

27. HSE Guidance for Employers on Drug and Alcohol Testing (Part 1) Requirements for Employers • Employers must secure the agreement of the workforce to the principle of testing/screening – Through each employees’ contract of employment • The HSE is only likely to find testing/screening acceptable if it forms part of a company’s occupational health policy and is clearly designed to prevent risks to others Consider the Practicalities • The specific testing an employer intends to carry out needs to be appropriate for the type of work carried out • Consider the cost of ensuring the accuracy and validity of test results • Samples need to be collected effectively and efficiently • Samples must be protected from contamination • Employers need to be careful about how the information obtained from testing is used

28. HSE Guidance for Employers on Drug and Alcohol Testing (Part 2) View of the HSE The HSE does not consider drug and alcohol testing/screening to be the complete solution to the issues caused by drug and alcohol abuse Recommendations for Employers Employers should refer to the guidance produced by the European Workplace Drug Testing Society (EWDTS) Employers should refer to the ICO Code of Practice and follow the specific guidance relevant to drug and alcohol testing

29. ICO Code of Practice – Guidance for Employers on Good Practice Ensure the benefits outweigh any adverse impact Testing and the information obtained is unlikely to be justified unless it for the purposes of health and safety Carry out an impact assessment prior to testing Employer’s should use post-incident testing where there is a reasonable suspicion of drug or alcohol use (rather than random testing) Minimise the amount of personal information obtained through the testing Unless testing produces ‘significantly better evidence of impairment than other less intrusive means’ it should not be used The least intrusive method of testing available should be used Employees should be informed about which drugs they are being tested for Testing should be based on ‘reliable scientific evidence’ about how specific drugs affect employees

30. EWDTS Guidelines – (Part 1) European Guidelines for Workplace Drug and Alcohol Testing Specific Guidelines for Workplace Drug Testing in Urine and Oral Fluids Specific Guidelines for Workplace Drug and Alcohol Testing in Hair General Guidelines applicable to Urine, Oral Fluids and Hair Applicable to laboratory-based testing only Drug testing should form part of an overall drug policy, which the purchaser of the testing has agreed with his employees The service provider should have an effective company drugs policy in place The dignity of the individual providing the urine specimen must be respected for the drug testing to be legally defensible Suitable records must be made when the specimen is collected to ensure the specimen collected is the same as the one received by the laboratory All positive samples and all records of the analytical process, must be kept for an agreed period of time or according to national legislation to allow for any challenges to be made regarding the findings

31. EWDTS Guidelines – (Part 2) Acceptable Screening Techniques Immunoassays Gas Chromatography High Performance Liquid Chromatography All chromatographic techniques coupled to mass spectrometry Capillary Zone Electrophoresis Quality Assurance Drug testing labs must have a quality management system which includes: Specimen receipt Chain of custody Security and reporting of results Screening and confirmation testing Certification of calibrators and controls Validation of analytical procedures

32. ACAS Guidance on Drug and Alcohol Policies The Purpose of a Drug and Alcohol Policy To protect employees and workers To encourage those suffering from drug and alcohol problems to seek help To provide management with education on signs of drug and alcohol abuse, how to assist workers seeking help and where to find expert advice To show management and other employees/workers that it is better to deal with the problem at an early stage than to cover up for someone with a drug or alcohol problem

33. Case Study – Bus Driver Succeeds in Unfair Dismissal Claim The Claim November 2018 Employment Tribunal – Kenneth Ball succeeded in an unfair dismissal claim against his former employer’s First Essex Buses Limited Mr Ball was dismissed for gross misconduct after a saliva test carried out after his shift, tested positive for cocaine Kenneth Ball’s Argument Worked as a bus driver for over 20 years, denied taking cocaine and informed his employer that he had only ever taken prescribed medication He suggested the cocaine could have been present to due contaminated bank notes handled whilst at work To prove his case he had two private hair follicle tests (known to be more reliable than the saliva test carried out by his employer) carried out, both of which came back negative First Essex Buses Limited refused to take these tests into account because they were not company procedure

34. Case Study – Bus Driver Succeeds in Unfair Dismissal Claim (Cont.) Judgment Employment Judge Tobin found in favour of Mr Ball The company’s own policy made it clear that all evidence had to be considered during the disciplinary process “To discount evidence on such a basis was illogical, grossly unfair and in breach of the disciplinary procedures" Awarded Mr Ball £37,369 in compensation Union Criticism Unite trade union highly critical of First Essex Buses Limited Like several other unions they expressed strong concerns about the use of workplace drug testing

35. Recent fines and sentencing update

36. Recent Fines & Sentencing Update • Manslaughter - Sentencing Guidelines • R v Electricity NW Ltd - Court of Appeal August 2018] • R v Squibb Group Ltd • R v NPS London Ltd

37. Recent Fines & Sentencing Update Guidelines apply to all offenders (aged over 18) sentenced on or after 1 November 2018 Types of manslaughter covered by the Sentencing Guidelines • Gross Negligence Manslaughter • Unlawful Act Manslaughter • Manslaughter by reason of loss of control • Manslaughter by reason of diminished responsibility

38. Recent Fines & Sentencing Update Gross Negligence Manslaughter • Envisaged that the Guidelines will increase sentences • Acknowledging that current sentencing practice in these sorts of cases is LOWER in the context of overall sentences for manslaughter of other types

39. Recent Fines & Sentencing Update Culpability (Page 10) A = Very High B = High C = Medium D = Low

40. Recent Fines & Sentencing Update Starting points and category range (Page 11) Very High 10 < 12 > 18 years custody High 6 < 8 > 12 years custody Medium 3 < 4 > 7 years custody Low 1 < 2 > 4 years custody

41. Recent Fines & Sentencing Update Adjustment up or down from Starting Point to take into account: • Aggravating factors (page 12) • Mitigating factors (page 13)

42. Recent Fines & Sentencing Update Paul White - 2005 Director of recycling business • Employee climbed into paper shredding machine to clear a blockage • The machine started and the employee sustained fatal injuries

43. Recent Fines & Sentencing Update Paul White continued • No system of isolation • No interlock fitted • Custom and practice to clear blockages with machine live • PW had received advice about dangerous practices from H&S consultant and chose to ignore it

44. Recent Fines & Sentencing Update Paul White continued • Guilty plea entered • Judge - "Only an immediate custodial sentence will suffice as punishment for you and to make it clear that courts will not countenance a situation such as arose in this case" • Sentence - 12 months custody

45. Recent Fines & Sentencing Update Paul White continued • Applying Sentencing Guidelines (retrospectively) • Adopting conservative approach • High culpability • 6 < 8 > 12 years custody • Adopting Starting Point and applying 1/3 discount for guilty plea = 5 years

46. Recent Fines & Sentencing Update Mark Connelly - 2006 • Tebay rail tragedy - 4 maintenance workers killed in February 2004 • Hydraulic brakes on 3 tonne flatbed trailer were disconnected/wound off • Trailer put on track with only wooden chocks to stop it moving • Wagon over ran the chocks and travelled 4 miles down the track hitting and killing 4 maintenance workers • Connelly accused of sabotaging the trailer for financial gain

47. Recent Fines & Sentencing Update Mark Connelly continued • Sentence - 9 years custody (after trial) reduced to 7 years on appeal

48. Recent Fines & Sentencing Update Mark Connelly continued • Applying Sentencing Guidelines (retrospectively) • Very High culpability • 10 < 12 > 18 years custody • Aggravating features would increase the Starting Point to say 15 years and no credit for guilty plea

49. R v Electricity NW Ltd Court of Appeal 23 August 2018 Facts of case: • On 22 November 2013, John Flowers, a linesman employed by the Defendant, was clearing ivy from vertical wooden pole • He was wearing a work positioning belt which was designed to allow him to lean back whilst working at height • He was NOT wearing a fall arrest lanyard • Whilst clearing vegetation with a handsaw he cut through work positioning belt and fell sustaining fatal injuries

50. R v Electricity NW Ltd Court of Appeal 23 August 2018 The following hierarchy was not disputed: • Mobile Elevated Work Platform (MEWP) • Ladder • Positioning belt used in conjunction with fall arrest lanyard