Health and safety
In this chapter of our Annual Insurance Review 2022, we look at the main developments in 2021 and expected issues in 2022 for health and safety.
Key developments in 2021
2021 saw the continued impact of the Covid-19 pandemic and how the nation's authoritative bodies responded. Within their data, published on 23 October 2021, the HSE reported that from 10 April 2020 – 23 October 2021, 36,589 disease notifications of Covid-19 in workers (where occupational exposure was suspected) were reported to enforcing authorities, including 417 death notifications.
In addition to those cases reported directly to the HSE, they have also carried out spot-checks on businesses to ensure their compliance. In September 2021, it was stated that around 316,000 such spot-checks had been carried out.
However, in contrast to these high figures, there has only been one reported prosecution to date: in September 2021, Manchester Magistrates' Court heard that on 9 July 2021, a spot-check was carried out at a construction site and Covid-19 (amongst other) breaches were identified. The principal contractor was issued with a prohibition notice and two improvement notices. However, upon the HSE's return inspection on 17 August 2020 little improvement had been made and further action was taken, which included the issue of a further prohibition notice.
Following continued non-compliance, Umar Akram Khatab (who had traded as A&A Contractors) was prosecuted and pleaded guilty to breaches of s.2(1) of the Health & Safety at Work etc. Act 1974 and Regulation 13(1) of the Construction (Design and Management) Regulations 2015.
The HSE advised that this was, "…the first prosecution to arise from the spot-check programme." and that they had "repeatedly stressed that prosecution is the last resort, but [the] case clearly illustrates that where there is a consistent disregard to Covid or other risks to employees' health and safety, HSE will use its powers to take action."
From the available data, it appears that the HSE have more focused on ensuring compliance with risks associated with Covid in workplaces via consultation with the duty holders, as opposed to commencing prosecutions where possible.
What to look out for in 2022
The Building Safety Bill ("the Bill") was drafted following Dame Judith Hackitt's review of the building safety regime (Building a Safer Future). The Bill is expected to receive Royal Assent in around mid-2022, with the indication being that some of the provisions will come into force in late 2022, with the remainder in early 2023.
The draft Bill seeks to improve safety standards for higher risk residential buildings, which are defined as buildings in England which are at least 18 metres high or have at least seven storeys and two residential units.
It includes provision for a new Building Safety Regulator which will have a variety of responsibilities seeking to improve building safety systems including encouraging the improvement of competence of those in the building industry, advising Ministers on changes to Building Regulations and implementing a new regulatory regime for higher risk buildings.
The Building (Appointment of Persons, Industry Competence and Duty Holders) (England) Regulations, which have been published alongside the draft Bill, set out the proposed responsibilities of various Duty Holders involved in the design, planning and implementation of building works with a requirement that they comply with competency requirements. The draft Bill introduces the role of the Accountable Person, who will be legally responsible for safety in the building. Their responsibilities include applying for a Building Safety Assessment prior to the building being occupied as well as an ongoing duty to assess both building safety and fire safely measures within the building. Failing to comply with these obligations will amount to a criminal offence and will expose the Accountable Person to a fine or a term of imprisonment of up to 2 years.
Other changes include the introduction of a new national regulator for constriction products which will have the power to withdraw unsafe products from the market and bring prosecutions. The draft Bill will also strengthen the Regulatory Reform (Fire Safety) Order 2005 by increasing the obligations of the Responsible Person in relation to the monitoring and implementation of fire safety measures in higher risk buildings.
The draft Bill will be introducing and / or increasing responsibilities of building owners and managers as well as construction professionals and failure to adhere to the legislation could give rise to both civil and criminal liability, which should be borne in mind by Underwriters and Claims Managers.
Written by Mamata Dutta & Elinor Sidwell.
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