The latest 2019 statistics from the Health and Safety Executive (HSE) revealed that falls from heights remain the number one cause of workplace fatalities, increasing from 35 people in the previous reporting year to 40 people.   In a timely move, new working from height guidance by the Association of Technical Lightning & Access Specialists (ATLAS) was issued in July 2019, entitled, “Wind Guidance Note for Working at Height”.  ATLAS has considerable experience and expertise in this sector, having played a role in the provision of health and safety guidance to companies in the lightning protection and specialist access at height sectors since 1946.

What is the purpose of the new ATLAS guidance?

Regulation 4 of the Work at Height Regulations 2005 (WAHR 2005) imposes a legal duty on employers to make sure that work undertaken at height is properly planned, appropriately supervised, and practicably safe.  The ATLAS guidance was written to assist site staff, employers and clients further “understand the importance of taking wind effects into account in their everyday assessment of activities whilst working at height”, in accordance with the WAHR 2005.  Specifically, it aims to:

• Improve the understanding of wind and its behaviour;
• Provide an on-site point of work risk assessment, and;
• Provide supporting information and tools for measuring wind and recording, including links to sources of further information.

What does ATLAS guidance recommend?

The guidance outlines a number of core concepts and considerations relating to the wind when working at height in the UK, including the following (note this is not an exhaustive list of the points made):

• Wind gusts (rapid variations in wind speed) are higher inland and are typically 60% higher than the average (mean) wind speed; in cities, this can be up to 100% higher.
• Northerly wind gusts are generally stronger than those from the south.
• When assessing risks, local topological features (the changes in land surfaces such as hills, rivers, and valleys) and wind direction must be considered.
• Account should always be taken of the effect of funnelling, whereby wind blowing between structures can cause wind in some parts of a site to accelerate, creating ‘windy corners’.
• The lee side of buildings or structures (sheltered side) may provide protection when working from height.
• The windchill effect should also be considered. It is important to consider the ‘feels like’ temperature on windy days, as this can cause human body temperatures to lower to dangerous levels.  When assessing this risk, it will be necessary to bear in mind the wind direction (i.e. northerly wind, especially in winter, creates lower ‘feels like’ temperature compared to the actual air temperature).
• Site weather conditions should always be formally recorded in the site diary.

The guidance refers to the wind code BS EN 1991-1-4:2005+A1:2010 which specifically deals with how to measure the impact of natural winds on loaded areas of buildings under construction.  The code which is intended for use by construction site managers, architects and building contractors, and those studying architecture and construction explains how the wind changes with height.  A wind speed of 10m/sec at 10m of height (classified as wind force 5 – a fresh breeze) could be 11.4m/sec at 50m and 12m/sec at 100m (both classified as wind force 6 – a strong breeze).  So while wind at ground level may be considered safe to work at height, it may not be the higher the worker goes (the HSE recommend not working on a roof if the wind is in excess of force 5 or 23 mph).

What does the guidance recommend in respect of high wind speeds?

The guidance makes it clear that regardless of the size of the job, responsibility lies with the individual in charge of the project, but there must be close coordination with the client.  Specialist measuring equipment such as wind-speed indicators, weather stations, and anemometers, can offer some assistance when assessing site risk and making decisions for working at height, but this is of no value for the prediction of future wind conditions.  As such, if there is a potential for high winds, continuous weather monitoring must be undertaken, including:

• Considering the time of year and its history
• Watching the various media and broadcasting channels for the weather forecast (in advance of work starting)
• Using information from the site (where available)
• Once work has started, continuous monitoring of the weather as shown on broadcasting channels and/or online data sources
• Setting up a portable weather station either hand-held or fixed (this will be especially important if there are site restrictions on the use of mobile phones)
• Recording findings to demonstrate that a point of work risk assessment has been carried out, and delays to job completion are justified in the interests of safety

Final words

Any company which requires its workers or contractors to work outside at height must establish a robust and safe system of work which takes the wind into full consideration.  The wind must be factored into all decision making from the earliest planning stages, through initial site preparations and the carrying out of work.  The HSE provides a great deal of information on ways in which workers can be made safe when working at height, including the use of personal protective equipment (PPE) such as safety harnesses with energy-absorbing lanyards attached to a suitable anchor point to arrest a fall.

When it comes to worker safety, leave no stone unturned.  Prioritising project schedules over worker safety can lead to fatalities, near misses, severely delayed projects if investigations are required, claims for a workplace injury, and significant damage to your organisation’s reputation.

Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law.  If you require legal representation, please contact Tanveer directly at tqureshi@4-5.co.uk or via his chambers, 4-5 Gray’s Inn Square. for more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk 

Health and safety laws and the self-employed have always led a contentious dance.  Before October 2015, those who were self-employed were obliged to manage the health and safety risk to themselves and others which could potentially arise from their work.  This applied regardless of the type of activity undertaken and the possible risk.

Naturally, such a blanket provision, (deriving from section 3(2) of the Health and Safety at Work etc. Act 1974 (HSWA 1974), was unpopular.  Self-employed workers were forced to produce detailed risk-assessments, method statements, and ensure they had all the necessary policies and procedures in place to minimise any risks uncovered.

Quite a burden if you were a one-person operation working on razor-thin margins.

Although some high-risk activities justified such tight control and onerous measures, the regulations were criticised for being over-burdensome, especially when the only risk presented was that to the self-employed person themselves.

Professor Löfstedt, in his report ‘, Reclaiming health and safety for all: An independent review of health and safety regulation’, suggested that rather than impose such a burden on businesses, self-employed people undertaking activities which posed no risk to others should be exempted from health and safety law.

The government implemented this recommendation in the form of the Deregulation Act 2015 (DA 2015).

How is ‘self-employed’ classified for health and safety law?

Under the HSWA 1974, a person is self-employed if they, “work[s] for gain or reward otherwise than under a contract of employment, whether or not he himself employs others”.

Are there any cases where a self-employed person would not be exempt from health and safety regulations under the DA 2015?

If you have employees, you will not be exempted from health and safety compliance.  This is also the case if you undertake ‘prescribed activities’ which includes work with or on:

• farms and agriculture, this includes all horticulture, fruit growing, seed growing, dairy farming, livestock breeding and keeping (including the management of livestock up to the point of slaughter or export from Great Britain), forestry, the use of land for grazing, market gardens and nursery grounds, and the preparation of land for agricultural use.
• asbestos
• construction where the Construction (Design and Management) Regulations 2015 apply
• situations where the Gas Safety Regulations 1998 apply, i.e. landlords
• genetically modified organisms within a research laboratory or a biotechnology production facility and not released into the environment covered by the Genetically Modified Organisms (Contained Use) Regulations 2014,
• railways

The tricky ‘catch-all’ provision

Even if the work you undertake as a self-employed person does not appear on the ‘prescribed list’, you may still be subject to health and safety regulations.  A ‘catch-all’ provision which provides that any other work that may risk the health and safety of another person, i.e. a hairdresser who works with chemicals, or a technical writer producing safety manuals which will be relied on, may mean you must fully comply with health and safety laws.

Although it seems contrary to the spirit of the DA 2015, which was enacted to cut the amount of red-tape which applied to small businesses, to protect your best interests, an assessment of your economic activities should be conducted to ensure they do not fall into the ‘catch-all’ provision.

Ideally, the details of such an assessment should be recorded, in case you are subject to a health and Safety Executive (HSE) investigation in the future.

Where can I go to for further advice on health and safety compliance and self-employment?

The HSE website devotes a section to assisting self-employed people with deciphering their health and safety obligations^[1].

The main points which the HSE suggests should be considered include:

• the location where the work activity is taking place and whether that area is accessible by others, including the public
• the equipment and/or materials which will be used which might be inhaled or otherwise encounter others

If the activity is taking place in an area nearby to the public or others, then it is likely that the activity may pose a risk to their health and safety.  Likewise, if the activity creates dust, fumes, sparks, or creates a trip or burn hazard, then the activity will in most cases cause a risk to the health and safety of those nearby.  In these cases, the self-employed person will have a duty under HSWA 1974, s 3(2) and must act to remove or reduce the possibility of any harm being caused.  Any failure to do so may lead to prosecution, regardless of whether any accident or injury results.

The safest way to check whether you need to comply with health and safety regulations is to have your work practices reviewed by an experienced lawyer.  If you are being investigated for a breach, it is crucial to seek expert legal advice immediately.  Being subject to prosecution can destroy your business reputation, your finances (if convicted), and your peace of mind.  A health and safety lawyer and/or barrister can provide an emergency response to an incident, ensure your best interests are protected in an investigation and build a robust defence if prosecution/sentencing occurs.

Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law.  If you require legal representation, please contact Tanveer directly at tqureshi@4-5.co.uk or via his chambers, 4-5 Gray’s Inn Square. for more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk 

[1] http://www.hse.gov.uk/self-employed/index.htm

In 2002, a coronavirus named SARS erupted in southern China, causing severe pneumonia in some victims.  It rapidly spread to other countries. It infected more than 8,000 people and killed 774.  Ten years later, MERS hit Saudi Arabia, causing and more than 850 deaths.  The latter disease still lingers in the region.

Now, in 2020, we have 2019-nCoV, which has, at the time of writing, led to 2,000 deaths and has infected around 74,000 people; with two patients confirmed in the UK.

What do these strains of coronavirus (which include the common cold) have in common?  They have leapt from animals to humans.  The first patients of the 2020 Coronavirus visited or worked at a seafood market in the Chinese city of Wuhan.  SARS was originally thought to have transferred from civet cats sold in a Chinese live animal market; however, scientists later established that the virus originated in bats who infected the cats.  Bats are also thought to have infected camels, leading to the MERS outbreak.

Dr Ian Lipkin of Columbia University, who assisted the World Health Organisation (WHO) and China during the SARS outbreak and advised Saudi Arabia about MERS, told the New York Times, “These wildlife markets are a risk.”

Indeed they are.  Bats, civets, porcupines, turtles, bamboo rats, many kinds of birds and other animals are piled together in markets such as the one in Wuhan, providing fertile ground for viruses to mutate and transfer to other species, including humans.

Alongside the tragic deaths and sickness caused, the latest virus stemming from an open market[1], has resulted in a storm of headlines across the world, leading to fear and the risk of panic.

We seldom think about the importance of food hygiene regulations.  Situations like we are experiencing at present (as I write I note that Singapore has just closed its border with China), serve as a strong reminder of how robust laws protect us.  Those who operate food manufacturing plants, restaurants, market stalls, and takeaways need to ensure they are fully aware of their duties and responsibilities under food hygiene regulations.  Otherwise, the consequences can be grave, not only for their commercial operation but for the public at large.

A summary of food hygiene prosecution

Much of the UK’s current food hygiene laws derives from the European Union and will therefore not change during the transition period which may or may not end in December 2020.

The two main food offences are found under sections 7 and 8 of the Food Safety Act 1990:

• Section 7 – Rendering food injurious to health by adding any article or substance; using any article or substance as an ingredient; abstracting any constituent; or subjecting it to any other process or treatment, with the intent that it shall be sold for human consumption
• Section 8 – Selling food not complying with food safety requirements.

‘Injurious to health’ is broadly defined in Article 14(4) of Regulation (EC) No 178/2002 and refers to:

• Not only to the probable immediate and/or short-term and/or long-term effect of that food on the health of a person consuming it, but also on subsequent generations.
• To the probable cumulative toxic effects.
• To the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers.

Article 14(2) to (5) of Regulation (EC) 178/2002 provides that it is an offence to market a product after the expiry of its ‘use by’ date.

Defences to food prosecution matters

Both a company and individuals can be prosecuted under the Food Safety and Hygiene (England) Regulations 2013.  A statutory defence is available if the Accused can prove that they or someone under their control (such as a manager) took all reasonable precautions and exercised all due diligence to avoid the offence occurring.

High risk equals harsh penalties

The maximum sentence following conviction after trial on indictment, in the Crown Court, is an unlimited fine, two years’ custody or both.  Following summary conviction in the Magistrate’s Court, the maximum sentence is an unlimited fine.

The Welsh regulations provide for slightly different maximum penalties.

Under regulation 17(1) of the Food Hygiene (Wales) Regulations 2006, the maximum penalty following conviction on indictment is an unlimited fine, two years’ custody or both. Following summary conviction, it is an unlimited fine.

Under regulation 4 of the General Food Regulations 2004, the following maximum conviction on indictment is an unlimited fine, two years’ custody or both. Following summary conviction, it is an unlimited fine, six months’ custody or both.

If a conviction occurs, the judge will work from Sentencing Guidelines to decide a punishment.  This will include examining any aggravating and mitigating factors stemming from the Defendant’s behaviour/operations.  Therefore, even if a guilty plea is the only realistic route, your legal team will be responsible for arguing any mitigating circumstances and will seek to persuade the Court that the culpability and harm caused was low.

The risk of business-breaking fines cannot be underestimated.  In Ealing LBC v Bakshi unreported 16 October 2017 (MC (Ealing)), the Court gave a fine of more than £155,000 to the owner of a restaurant for several food hygiene offences under the Food Safety and Hygiene (England) Regulations 2013.  Two local authority inspections had uncovered breaches, and the restaurant had demonstrated a history of low food hygiene performance since 2009.

For the welfare of humanity, food safety must be prioritised by all those in food-related industries.  And only by ensuring compliance with rules and regulations will you have a statutory defence available should you face prosecution.  Although it may not be an exciting element of your work, understanding your food safety duties and responsibilities will protect your business and your customers.  And that makes good commercial sense.

Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law.  If you require legal representation, please contact Tanveer directly at tqureshi@4-5.co.uk or via his chambers, 4-5 Gray’s Inn Square. for more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk 

[1] Open markets occur in other nations aside from China.