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    HMO Landlords Face Unlimited Fines Under New Fire Regulations

    Landlords and managing agents of houses in multiple occupation (HMO) could face unlimited fines under new measures to be included in the Building Safety Bill, likely to come into force in 2022.

    As part of the reforms resulting from the Grenfell Tower tragedy, the measures will amend the Fire Safety Order to:

    • improve the quality of fire risk assessments and competence of those who complete them;
    • ensure vital fire safety information is preserved over the lifespan of all regulated buildings;
    • improve cooperation and coordination amongst people responsible for fire safety and making it easier to identify who they are;
    • strengthen enforcement action, with anyone impersonating or obstructing a fire inspector facing unlimited fines;
    • strengthen guidance issued under the Fire Safety Order so that failure to follow it may be considered in court proceedings as evidence of a breach of compliance;
    • improve the engagement between Building Control Bodies and Fire Authorities in reviewing plans for building work;
    • require all new flats above 11 metres tall to install premises information boxes.

    The unlimited fines relate to the offence of obstructing or impersonating fire inspectors.

    The measures form part of the Government’s response to the Fire Safety Consultation that ran from July to October 2020.

    What Is the Fire Safety Consultation (the Consultation)?

    The British Government is determined that the fire which consumed Grenfell Tower and cost 72 people their lives never happens again.  This will be achieved by reforming building and fire safety laws.

    The Consultation paper proposed to:

    • “strengthen the Regulatory Reform (Fire Safety) Order 2005 and improve compliance
    • implement the Grenfell Tower Inquiry Phase 1 Report recommendations that require a change in law to place new requirements on building owners or managers of multi-occupied residential buildings, mostly high-rise buildings
    • strengthen the regulatory framework for how building control bodies consult with Fire and Rescue Authorities on planning for building work and the handover of fire safety information”.

    The Government’s response to the Consultation stated that in general, its proposals for improvement received a positive response, especially in relation to strengthening the Regulatory Reform (Fire Safety) Order 2005 (FSO) and improving overall regulatory compliance.  The response document also stated that a:

    “….recurring theme throughout many of the responses was the need to consider other risk factors in addition to a building’s height in order to determine the extent of fire safety measures necessary to mitigate them. This point was particularly emphasised in relation to higher risk workplaces.”

    Have there been any recent prosecutions against landlords for breaching fire safety regulations?

    There have been several recent incidents of landlords being prosecuted for fire safety offences, including:

    • In February 2021, an HMO landlord was prosecuted following a fire in a five-bedroom home.  Only one fire detector had been fitted. Taunton Crown Court handed down a nine-month custodial sentence, suspended for 18 months.
    • A landlord who had previous convictions for harassing tenants, failure to comply with improvement notices, and poor management of HMOs was ordered to pay over £7,000 in fines and costs for fire safety failures.  Sentencing, which took place in Sheffield in March 2021, also saw the landlord given a 12-month Community Order.  When inspecting the property, housing officials found evidence of inadequate fire detection and heating systems, damaged fire doors, serious damp, unsafe electrics including bypassed electricity meters, and rat infestations, which they said left occupants ‘vulnerable to serious risk of harm from fire and infection’.
    • In October 2020, a landlord was sentenced to four months imprisonment, suspended for 12 months, with a fine of £20,000 and £12,000 in costs following the death of a tenant in a house fire.  The HMO was occupied by seven people; however, there were no fire doors and although some fire detection was present it may not have worked.  Furthermore, there was no linking in the fire detection apparatus as required by law.

    Final words

    Local and central authorities are increasing their enforcement of landlord fire safety breaches.  The new measures to be included in the Fire Safety Bill will add to fire safety compliance requirements applicable to landlords and managers of HMOs. If you are being investigated for suspected fire safety compliance breaches, it is imperative that you contact a criminal defence lawyer or barrister immediately to ensure the best interests of you and/or your company are protected.Tanveer Qureshi specialises in white-collar crime and regulatory investigations and prosecutions.  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 

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      Non- Privileged Email Attachments Not Covered By Legal Professional Privilege

      The Supreme Court has stated that non-privileged email attachments are not covered by legal professional privilege.  This is the case even if the email itself is protected.

      The UK’s highest court refused permission to appeal in Frasers Group Pls (formerly Sports Direct International plc) v The Financial Reporting Council Ltd after the retailer challenged the decision of the High Court and Court of Appeal that it had to disclose 21 email attachments.

      Permission to appeal was refused because the Supreme Court concluded Frasers Group’s application did not raise any arguable points of law.

      Background

      The Financial Reporting Council (‘FRC’), which regulates auditors, is involved in an ongoing investigation into the conduct of Sports Direct’s former auditors, Grant Thornton UK LLP and of a person working at the firm.  The investigation concerns the audit of the financial statements of Sports Direct and its subsidiaries for the year ending 24 April 2016 and in particular, the engagement by a subsidiary of Sports Direct called Sports Direct Retail of an entity called Barlin Delivery Ltd to provide delivery services to that subsidiary’s customers.  The relationship between the owners of Barlin and Sports Direct was not disclosed in the group’s accounts, and this resulted in a regulatory investigation being launched.

      During April and May 2017, the FRC issued notices to Sports Direct under para. 1 Schedule 2 of the Statutory Auditors and Third Country Auditors Regulations (‘SATCAR’) and rule 10(b) of the Audit Enforcement Procedure seeking certain categories of documents.  The relevant notice relating to the case was issued on 20 April 2017 (‘the Notice’).  It stated that for the purposes of the investigation, Sports Direct must provide in electronic format all emails and attachments to emails in the possession and control of Sports Direct which (i) relate to the audit; (ii) are held by one or more of five identified custodians; (iii) are dated within certain specified date ranges; and (iv) are responsive to one or more of 27 different specified search terms.

      Sports Direct provided around 2,000 emails but withheld 40 claiming they were subject to legal professional privilege (‘LPP’) as they comprised of emails and attachments sent to or by Sports Direct’s internal and external legal advisors.

      The FRC argued that although the emails did contain material that would normally be protected by LPP, they fell within a narrow exception recognised in case law meaning that in the particular circumstances of this request the handing over of the 40 emails would not prejudice Sports Direct’s privilege.  Alternatively, the FRC stated that any infringement would be a technical infringement only and would be authorised by the SATCAR regime.

      The High Court decision

      At first instance the High Court judge accepted the FRC’s arguments, ruling that even if the emails themselves attracted LPP, it did not necessarily follow that any attachments did.  This was based on dicta by Lord Hoffman in R. (on the application of Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002] UKHL 21.  Sport’s Direct appealed, arguing that Lord Hoffman’s comments did not establish a principle that the production of documents to a Regulator was not always an infringement of the regulated person’s LPP.  The alternative argument was that there could be no override of even a technical breach of privilege implied into Sch.2, given the clear terms of the limitation on SATCAR’s power to call for documents.

      The Court of Appeal decision

      Partially overturning the High Court decision, the Court of Appeal confirmed that under English law the only exceptions to LLP is where communications between a Solicitor and client is for a criminal purpose or where legislation makes clear by express words or necessary implication that LLP is excluded if particular circumstances apply.

      “… there is nothing in [the case law] that suggests that paragraph 1(8) of Schedule 2 to SATCAR means something different from exactly what it says. The recipient of a notice given by the FRC under paragraph 1(1) or 1(3) is not required to hand over privileged documents, whether the person entitled to the privilege is the auditor under investigation or the auditor’s clients.”

      The Court went on to say:

      “Moreover, if Parliament had intended to preserve some general exception applicable where documents are sought pursuant to regulatory powers, paragraph 1(8) would not have been drafted in the way it is.”

      There was also no justification for regarding Lord Hoffmann’s comments as authority either for the existence of a “no infringement” exception to the protection conferred by LPP or for the application of some lower threshold for implying a statutory override on the ground that any infringement would be technical. 

      However, non-privileged documents attached to an email which is protected by LPP do not acquire LPP simply by virtue of being attached to the protected email.  Therefore, they must be disclosed.

      Comment

      Companies will welcome the fact that in denying the application to appeal the Supreme Court confirmed that exceptions to LLP are extremely limited and the Courts have no immediate desire to expand them.  However, care must be taken with non-privileged documents as these can still be requested even if they were attached to an email protected by LLP.Tanveer Qureshi specialises in white-collar crime and regulatory investigations and prosecutions.  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 

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        The Financial Services Sector Has The Power To Help Eradicate Modern Slavery

        Although we think of the financial sector predominantly in terms of investment and the global movement of funds, the City is in a position to immensely influence social and human rights matters such as climate change[C1] and modern slavery. With regard to the latter, the Independent Anti-Slavery Commissioner has recently published a report entitled: “Preventing Modern Slavery & Human Trafficking: An Agenda for Action across the Financial Services Sector[C2] ” (the Report). It highlights that the financial sector must do more to address modern slavery and human exploitation and sets out recommendations for how this can be achieved.

        With over 40 million people held in modern slavery in 2016 and a further 16 million victims of labour exploitation, such abuse is a problem for every country and the UK is no exception. For example, in 2020, the Coronavirus pandemic exposed the shocking incidents of worker exploitation in Leicester textile factories[C3] .

        Generating illegal profits of around $US150 billion per year, modern slavery is one of the top three international crimes, alongside drug trafficking and trade in counterfeit goods.

        While the City of London may seem far from the dilapidated textile factories of Leicestershire because money laundering and fraud are intertwined with modern slavery, the financial sector must be at the heart of steps to combat it. However, the Report shows that many who work in finance have a narrow view of the sector’s impact on worker exploitation and slavery. Often only direct examples were considered, such as whether office cleaners, caterers, and construction workers were victims of such practices. However, the Report has called for the City to focus on the wider impact its business practices have on modern slavery, particularly relating to its investments, client relationships, and lending.

        Dame Sara Thornton, the UK Independent Anti-Slavery Commissioner comments in the Report’s foreword:

        “Financial institutions have a significant role to detect and disrupt this serious organised criminality but this report shows that through their lending and investment decisions they can do so much more. There is a growing recognition that investors and lenders do not want to invest in companies which are harming the environment. But similarly, do they want to invest in businesses that are harming people?”

        Although the UK Modern Slavery Act 2015 requires all companies with a turnover of more than £36 million to produce an annual statement on the steps taken to tackle modern slavery and human trafficking in their organisations and supply chains, Dame Thornton states that the Report’s findings show this does not go far enough to address the “spectrum of abuses”.

        Below are some of the recommendations made by the Report.

        • Change begins at the top. Business leaders need to stand together against modern slavery and labour exploitation and put the issue on their Board and Senior Management agendas.
        • Wherever possible, modern slavery should be incorporated into existing risk assessments and due diligence practices.
        • Board members should be fully aware of the commitments they have made towards the UK Modern Slavery Act 2015 and understand the contents of the statements they sign off relating to compliance.
        • A culture of transparency regarding the identification of modern slavery and labour exploitation in the business and its supply chains and/or client relationships should be encouraged.
        • Procurement departments should review the recruitment processes of manpower suppliers and ensure the same is carried out across the supply lines of partner organisations.
        • Investment companies should incorporate modern slavery and labour exploitation elements into any company-wide Human Rights Due Diligence framework, ensuring everyone across the entity is using the same risk assessment and due diligence practices.
        • As a precondition of investment or lending terms, financial businesses should ask for proof that no modern slavery and labour exploitation exists in the borrower’s supply chain.
        • Modern slavery red flags should be incorporated into existing money laundering control frameworks.
        • Retail bank staff should be trained to look carefully at suspicious activity and facilitate access to bank accounts and support services for victims of modern slavery.

        As gatekeepers to capital, financial institutions are in a unique position to positively influence clients and businesses. Dame Sara Thornton comments that although human rights due diligence is not currently required by statute “surely it is better to do the right thing rather than be forced to do so by legislation?”. Furthermore, the British Academy has confirmed that ‘the purpose of business is to solve the problems of people and planet profitably and not profit from causing problems.

        By implementing some of the Report’s recommendations, the financial sector can significantly contribute to ending the scourge of modern slavery and the human misery it creates.

        Tanveer Qureshi specialises in white-collar crime and regulatory investigations and prosecutions. 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


        [C1]Climate change: a key imperative for financial services — Financier Worldwide

        [C2]Modern Slavery and Human Trafficking in Financial Services — THEMIS (themisservices.co.uk)

        [C3]Leicester: Up to 10,000 could be victims of modern slavery in textile factories | UK News | Sky News

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          The HMRC Process For Identifying Furlough Fraud

          The Chancellor, Rishi Sunak has announced that the Furlough Scheme, which pays a percentage of an employee’s wages if they are unable to work because of a Covid-19 lockdown, will be extended until April 2021.

          According to The Guardian – “Against a backdrop of rising coronavirus cases and the return of tougher government restrictions that are expected to remain in place well into the New Year, the Treasury said it would continue to contribute 80% towards workers’ wages to give businesses and employees certainty.”

          However, despite the Furlough Scheme (officially called the Coronavirus Job Retention Scheme) being extended, a parallel project is underway to claw back money that employers should not have claimed during the first lockdown (March till May 2020).  Around £3.6 billion in furlough payments have been claimed in error throughout the year and it is estimated that £2 billion of this has been stolen by criminal gangs.  In August, a 90-day amnesty period for those who had collected excess payments was announced; however, this period has now expired.

          Several arrests have already been made in connection with furlough fraud.  The first, in July 2020 involved the fraudulent obtaining of almost £500,000.  A suspected multi-million-pound tax fraud and alleged money laundering offences were being investigated alongside the furlough fraud.  And in September 2020, an accountant and a company director were arrested following an HMRC investigation which unveiled fraud totalling £70,000.

          HMRC are following a process when investigating suspected furlough fraud.  Below is how you can protect yourself if your business comes under scrutiny.

          Steps HMRC are taking in identifying furlough fraud

          If you have received payments under the Furlough Scheme, HMRC may request information from you such as:

          • The names of employees’ who received furlough payments, the hours they worked, and how the furlough payments were calculated.
          • Evidence of the claims and payments made.
          • Details of any adjustments or corrections made to payments.

          To minimise stress, make sure you have this information readily to hand.

          If there are discrepancies or an employee informs the HMRC that furlough payments were made in error or they were asked to continue working whilst furloughed, the department may ask for further information.  Evidence may be required to show that furlough payments were necessary for the survival of the business and that your organisation complied with furlough rules.

          If HMRC makes contact you must seek legal advice immediately.  As mentioned above, much of the furlough fraud identified was orchestrated by criminal gangs.  You may discover that your business has inadvertently been caught up in a sophisticated fraud operation.  Without expert advice from a fraud lawyer, you could find yourself subject to a stressful investigation and even prosecuted for furlough fraud.

          How businesses have been inadvertently caught up in furlough fraud

          The speed in which the Furlough Scheme had to be implemented and the lack of checks around claimants made it inevitable that criminal gangs would take advantage of the system.  Furlough agents accounted for around half of claims under the Jobs Retention Scheme.  Details of these agents were likely to have been stolen, allowing fraudsters to claim large amounts under the guise of legitimate organisations.  For the first few months of the scheme, many businesses may have had their details hijacked and used to make fraudulent claims.

          A damaging fallout from this type of furlough fraud is that legitimate businesses who have unknowingly had large sums entering and exiting their company accounts may find themselves facing criminal charges.

          How to protect yourself against furlough or bounce back loan fraud

          To protect yourself from getting caught up in fraud committed against the government’s Coronavirus business support schemes you must invest time in conducting due diligence whenever you take on a new customer, supplier, investor, agent, distributor, or joint venture partner.  The level of due diligence required will depend on the risk posed by the party – a client you have had dealings with in the past is likely to require little more than the checking and recording of their identity.  However, an overseas prospect or investor who deals in large cash deposits will require far more scrutiny, preferably by a professional such as a lawyer or accountant.

          It is also essential to keep a watchful eye on your business bank accounts and investments.  Any suspicious activity should be reported via a Suspicious Activity Report (SARs).  Before doing so, it is wise to seek legal advice to ensure your best interests are protected throughout the reporting process.

          Tanveer Qureshi specialises in white-collar crime and regulatory investigations and prosecutions.  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 

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            Tax Investigations and prosecutions – Post Covid – A TQ Legal Webinar

            TQ Legal is delighted to be part of this series of webinars beginning with:

            Tax Investigations and prosecutions – Post Covid

            This is a joint initiative between and The first in a series of seminars jointly presented by and .

            To hear about our upcoming webinars and get our regular TQ Legal Bulletin please sign up here.

            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.

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              Business Fraud: What Will Happen When the Tide Goes Out?

              Throughout economic history, financial prosperity has acted as the ultimate smokescreen for acts of business fraud. On the other side of the equation, however, once the financial tide ebbs, those same acts are left exposed for everyone to see. In the context of the COVID-19 pandemic, there is no lack of commentary suggesting that we (the world) may be heading for a deep recession, which may span 2021 and possibly beyond. If this does eventuate, what will this mean for those involved in financial fraud and other forms of white-collar crime?

              COVID-19 is pushing back the tide, and fast

              Warren Buffett once stated the oft-repeated words, “You only find out who is swimming naked when the tide goes out”. Unfortunately for many fraudsters, the COVID-19 pandemic is pushing back the tide at a rate rarely seen in modern economic times, if ever. While this rapid decline may also mean a speedy bounce-back is likely, the economic dip may be deep enough to reveal all. This will be accelerated as some global companies involved in systemic business and accounting fraud were already pushing their luck and had been partially exposed as a result. A recent Economist article outlines several examples of exactly this type of (thankfully rare) large-scale accounting fraud, including a number of Chinese companies such as Luckin Coffee and GSX which had vastly inflated their sales. They also cite other firms, such as WeWork who have just about remained on the side of the law by using Generally Accepted Accounting Principles (gaap) to make a loss in 2018 into a healthy profit.

              The COVID-19 pandemic will lift the veil on some fraudsters, but it will also drive new frauds, due in large part to desperation. It will be all too tempting for businesses struggling to survive to buy themselves some time by not being honest about the state of the books, applying for government bailout money when they do not qualify, furloughing staff who are still working, and other fraudulent practices. It may be that some will be tempted to take advantage of the situation in the belief that most business chicanery will be brushed under the rug and we will all start with a clean slate once things return to normal. But is this faulty logic?

              To predict the future we need to look at the past

              It is commonly believed that most bankers who were culpable for the 2008 financial crash evaded criminal prosecution. According to the Financial Times, 47 bankers were jailed for their role in the financial crisis. In the wash-up, serious acts of insider trading, accounting fraud, and other financial deceptions were discovered and pounced upon by the authorities. According to Channel 4, the LIBOR scandal saw at least five people sent to jail (one person was jailed for 11 years for conspiracy to defraud). It has to be said, however, that the UK took a softer stance than the US. US authorities went after those at the root cause of the financial crisis, especially in relation to mortgage mis-selling, and also those who misused government bailout money. On this latter issue, investigations by the US Special Inspector General for the Troubled Asset Relief Program (SIGTARP) into the alleged misuse of funds eventually led to 402 individuals facing criminal charges, including 97 bankers charged with fraud (including some Wall Street traders); 324 people being convicted, of whom 222 were sentenced to prison.

              Will there be a stronger appetite to bring corporate wrong-doers in the future?

              The extent to which any dishonest practices of companies and banks during the predicted financial crisis will be brought to justice will be, in part, determined by who is in power at the time. In order to investigate historical and often complex financial crimes, vast resources are required, and this requires a serious commitment by those at the top of government. With Brexit also on the horizon, it is reasonable to suggest that the government will not be robustly focused on bringing perpetrators of business fraud to justice, either during or after the immediate COVID-19 pandemic crisis, in the next twelve months. Their focus will almost certainly be elsewhere. This means it will fall to the existing oversight authorities to investigate financial crimes. The announcement by Chancellor, Rishi Sunak, in March of a £100m levy on companies to help combat money laundering, does suggest some renewed high-level commitment to tackling economic crime in the UK. The new levy is intended to be used for the implementation of new technology for law enforcement and also to hire financial investigators in line with the Economic Crime Plan unveiled by the National Crime Agency (NCA) in July 2019.

              Final words

              Whether there will be a new wave of financial crime as a result of the COVID-19 pandemic (and its economic impact) remains to be seen, however, some will undoubtedly use this as a smokescreen for financial wrongdoing, and others will be exposed for historical criminal behaviour. Brexit may also provide further cover, especially given the government will be entirely focused on planning and managing any fall-out which arises. This will leave the existing authorities to bring business criminals to justice. The extent to which they can and will depend largely on their capacity and resources to investigate in the wake of COVID-19 and Brexit. Only time will tell how successful they will be.

              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.

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                COVID-19: Are We Doing Enough to Protect the Health & Safety of Employees?

                Effective health and safety management has always involved a process of identifying risks and putting in place measures or mitigations to protect the safety of workers. COVID-19 is no different in this respect; all businesses, small or large, have to do what they reasonably can to control the spread of the virus. The challenge is that not only is it invisible, but the exact mechanisms behind how it spreads also are not entirely clear. This raises the key question for businesses who are looking to re-establish their operations; are we doing enough to protect workers, and are we at risk of inadvertently breaching health and safety law?

                Are businesses at risk of breaching H&S law due to COVID-19?

                All businesses are obliged to conform with the Health and Safety at Work etc. Act 1974 (HSWA) which states, ‘it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’. In practical terms, this means that equipment, systems, information, training, supervision, and instruction must be put in place so far as is reasonably practicable, to protect the health and safety at work of employees. It is, however, highly unlikely that HASW will be readily enforced where COVID-19 has spread within a workplace, especially given that PPE, handwashing, screening, and social distancing measures are no guarantee that the virus will not spread.

                Businesses also have a legal obligation to report significant health and safety events to the Health and Safety Executive (HSE). HSE has issued new COVID-19 specific guidance in relation to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), stating that reports must only be made when:

                • an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
                • a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
                • a worker dies as a result of occupational exposure to coronavirus.

                The key words above are ‘reasonable evidence’; how can an employer possibly know if COVID-19 was caused by workplace exposure, and not in another setting? It may only be realistically possible to infer workplace transmission where an employee is in known contact with the virus – e.g. front-line workers treating patients with COVID-19. Therefore, in the absence of a causal link for a diagnosis of COVID-19, as will be the case in most workplaces outside of healthcare, most businesses should not find themselves in breach of their reporting obligations to HSE.

                How should businesses approach COVID-19 health and safety?

                There is much that can be done to protect workers from the COVID-19 virus; extensive guidance has been published by the HSE, which recommends:

                • Identifying work activity or situations which might cause transmission of the virus, considering who could be at risk, deciding how likely it is that someone could be exposed, acting to remove the activity or situation, or if this isn’t possible, controlling the risk
                • Following sector-specific guidance
                • Reviewing where employees are located to reduce risk – including providing equipment (e.g. laptops) to facilitate home working
                • Reviewing how employees work together
                • Putting in place social distancing and hygiene measures in line with government guidance
                • Considering how the risk of exposure to COVID-19 can be reduced when commuting to and from work
                • Communicating with employees on how they can protect themselves
                • Designing work areas to mitigate risks, including using tape and signage to ensure two-metre distancing, reducing the number of staff in each area, cleaning of items touched and used by workers, overall workplace cleaning, and implementing protective screens
                • Controlling the movement of workers in the workplace (e.g. one-way movement and reducing the number of people allowed in lifts).
                • Controlling the use of common areas.
                • Ensuring good hygiene at all times
                • The use of personal protective equipment (PPE)
                • The provision of information and guidance on health and safety

                While COVID-19 poses a considerable health and safety challenge, every effort should be made to mitigate the impact on those workers who are most vulnerable. It is now clearly established that some individuals are proportionally more at risk from COVID-19, including, according to the NHS, those who:

                • have had an organ transplant
                • are having chemotherapy or antibody treatment for cancer, including immunotherapy
                • are having an intense course of radiotherapy (radical radiotherapy) for lung cancer
                • are having targeted cancer treatments that can affect the immune system (such as protein kinase inhibitors or PARP inhibitors)
                • have blood or bone marrow cancer (such as leukaemia, lymphoma or myeloma)
                • have had a bone marrow or stem cell transplant in the past six months, or are still taking an immunosuppressant medicine
                • have been told by a doctor they have a severe lung condition (such as cystic fibrosis, severe asthma or severe COPD)
                • have a condition that means they have a very high risk of getting infections (such as SCID or sickle cell)
                • are taking medicine that makes them much more likely to get infections (such as high doses of steroids)
                • have a serious heart condition and are pregnant

                It might be that those with the highest risk within your business will have to work at home, or where this is not possible due to the nature of the role, they should be offered jobs for which you can better prevent their risk of exposure to COVID-19.

                It is highly advisable to review the official government guidance on a daily basis to determine any new rules or changes in law which may relate to your business. And as a matter of standard practice, ensure that robust records (including clear contemporaneous notes) are kept in relation to your regular health and safety risk assessments. While these may never be needed, they will prove essential if your business is accused of a health and safety breach in the future.

                In conclusion

                All businesses have a duty to protect the health and safety of their workers. While it is unlikely that enforcement action by the HSE will be taken due to the spread of the virus in the workplace, every effort should be taken to protect staff, customers, and anyone else in contact with your business. Doing so will engender trust within your organisation, meaning that workers will continue to come to work in the knowledge that you are doing all you can to protect your team. Ultimately this is an unprecedented situation for modern day workplaces and businesses will be judged on how they step up to the health and safety mark.

                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.

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                  Staying on the Right Side of the Law During the Coronavirus Pandemic

                  At the time of writing (24th March 2020), the Coronavirus Bill 2019-21 has passed through the House of Commons and is due to enter the House of Lords today. If passed, it will introduce a sweeping new range of legal powers and measures. At the same time governments around the world, including that of the Isle of Man, have implemented similar laws in a desperate bid to curb and discourage behaviours which could exacerbate the spread of the killer virus. Businesses and individuals cannot afford to be complacent when it comes to Coronavirus.

                  UK now on lockdown

                  As most readers will be only too aware, the UK is effectively in full lockdown; a fact reaffirmed this morning when I received a text from the Government (sent to all citizens) telling me to stay at home. Last night, at 5 pm, the Government’s emergency Cobra committee implemented three new emergency Coronavirus spread prevention measures requiring:

                  • People to stay at home, except for very limited purposes
                  • Closing non-essential shops and community spaces
                  • Stopping all gatherings of more than two people in public

                  The police and other authorities will have powers to enforce the new measures through fines and forced dispersal of gatherings. Initially, the fines are expected to be £30 for any breach, but I expect the Government to increase these substantially if there continues to be widespread contravention of these new emergency laws.

                  The new rules will be in place for a period of three weeks, and subject to how effective they are, they may be tightened or relaxed at that point.

                  The Coronavirus Bill 2019 -21

                  The Coronavirus Bill 2019-21 (the Bill) is essentially a temporary emergency toolkit which will allow the authorities to carry out actions which even only a couple of weeks ago would have felt wholly unnecessary and even draconian. We now know that such powers are going to be essential in saving as many lives as possible. The Bill introduces the following legal powers, among many others:

                  New Coronavirus orders

                  Magistrates courts will be able to impose Coronavirus quarantine orders on individuals if:

                  • they are known to be infected or contaminated
                  • the infection or contamination is one which presents or could present significant harm to human health,
                  • there is a risk that the individual might infect or contaminate others, and
                  • it is necessary to make the order in order to remove or reduce that risk.

                  If it is believed items or premises pose a risk of passing Coronavirus on to individuals, orders can be issued to ensure that suitable action is taken, including seizing, disinfecting, destroying, or closure (in the case of property).

                  Maintaining the UK food supply

                  The new Bill will introduce stringent measures to make sure there is no interruption to the food supply. In order to enforce this, persons connected with the UK food supply chain will be required by law to divulge if there is a current or potential disruption. If such information is not relayed to the appropriate authority, or is misleading, a maximum fine of 1% of the company’s turnover may be levied.

                  Other key measures introduced by the Bill include:

                  • new powers to “restrict or prohibit events and gatherings during the pandemic in any place, vehicle, train, vessel or aircraft, any movable structure and any offshore installation and, where necessary, to close premises”
                  • individuals who refuse to undergo a Coronavirus test may be fined £1,000
                  • more video and audio links will be made available for criminal court proceedings – these measures are intended to avoid “adjournments and keeping business moving through the courts to help reduce delays in the administration of justice and alleviate the impact on families, victims, witnesses and defendants”.
                  • new powers will enable authorities to detain potentially infectious persons for 48 hours

                  The Bill spans 329 pages and as such brings in a substantial range of legal changes. While the situation is clearly urgent, authorities will need time to adapt to the new laws and to fully understand how they should be applied. In addition, it will be important that companies, employees, and members of the public understand their obligations under these new laws to ensure that they do not inadvertently find themselves in breach.

                  Proposed statutory self-employment pay

                  In a new development which, if successful, will bring welcome relief to over five million self-employed people across the UK, the House of Commons Public Bill Committee has now proposed a Statutory Self-Employment Pay amendment to the Coronavirus Bill.

                  If accepted, “freelancers” and “self-employed people” should receive guaranteed earnings of:
                  (a) 80% of their monthly net earnings, averaged over the last three years; or,
                  (b) £2,917 per month
                  whichever is the lower.

                  The purpose of this amendment is to make the Government’ top up’ self-employed workers’ earnings to the lower of 80% of their net monthly earnings or £2,917 a month.

                  Isle of Man – Man arrested for failing to self-isolate

                  The Isle of Man government’s newly introduced Coronavirus emergency powers were tested this week. The new law requires all arrivals on the island to self-isolate for 14 days or face a fine of £10,000 or three months in prison. In this case, a 26-year old man, who had arrived on the island and had not self-isolated, was arrested after later handing himself to the police. The police decided not to prosecute the man.

                  Adhering to health and safety now more important than ever

                  In a recent radio phone-in show, I listened in horror as a man working for a large construction company informed the presenter that while his bosses were all safely working from home, he and his many colleagues were expected to carry on working on a building site with little in the way of protection from Coronavirus spread. He explained that not only had the one container of hand-sanitiser provided long been used up and not replaced, but his employer also insisted all staff still ‘clock-in’ using a fingerprint recognition device at a turn-style to enter the site – meaning that hundreds of workers are touching the same surface throughout the day. To make matters worse, the site has already seen two cases of COVID-19! Furthermore, many of the workers are self-employed and face having no income if they do not continue working in such dangerous conditions.

                  It really cannot be overstated how imperative it is that health and safety laws are adhered to. Under the Personal Protective Equipment at Work Regulations 1992, all employers have a legal duty to provide suitable personal protective equipment to staff who may be “exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective”. Knowingly exposing staff members to the risk of Coronavirus may lead to serious criminal prosecution including large fines or imprisonment. I would advise all businesses urgently to draw up a risk assessment to find and mitigate any Coronavirus related hazards.

                  Final words

                  We all have a part to play in protecting our health and that of our colleagues, family, friends, fellow citizens, and neighbours. The new powers to be introduced by the Government will need to be enforced with a rod of iron if they are to be taken seriously. It will, therefore, not be surprising to see those breaching Coronavirus related laws facing serious punishments in the coming weeks and months. You have been warned!

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                    ATLAS Publishes Wind Guidance Note for Working at Height

                    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 

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                      The Health and Safety Duties of the Self Employed

                      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

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