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BIFM Corporate Members Event
June 2015
Lee GrantHead of Service &
Community Development, BIFM
#BIFMCME
AgendaCorporate Members Event:Legislation Impacting Facilities Management
> Barbour - Teresa Higgins, Sales Director, Barbour EHS
> CDM - Jason Bleasdale, Partner in the Casualty and Healthcare Group, Clyde & Co. & Rhian Gilligan, Legal Director, Safety Health and Environment Regulatory, Clyde & Co.
> CDM case study - Ophelia Bellio, Facilities Manager – Facilities & Property, Ricoh UK Ltd
> ESOS - Jason Bleasdale, Partner in the Casualty and Healthcare Group, Clyde & Co.
> COMAH - Rhian Gilligan, Legal Director, Safety Health and Environment Regulatory, Clyde & Co.
Jason Bleasdale & Rhian Gilligan
Clyde & Co.
#BIFMCME
CDM Regulations 2015Jason Bleasdale, Partner
Rhian Gilligan, Legal Director
Clyde & Co Claims LLP
CDM REGULATIONS 2015 – MORE RELEVANT AND FOCUSED OR
JUST MORE RED TAPE?
Timeline to 2015
1992 – EU Directive 92/57/EEC
1994 – CONDAM Regulations
2000/01 – 105 deaths
2007 – new CDM Regulations
2010/12 – evaluation of CDM 2010
- “Common Sense, Common Safety” – Lord Young, 2010
- “Good Health and Safety, Good for Everyone” – Govt. 2011
- “Reclaiming Health and Safety for All” – Prof. Lofstedt, 2011
2014 – consultation on replacing CDM 2007
2015 – new Regulations enacted
So why change CDM 2007?
Legal – non-compliance with EU Directive 92/57/EEC(!)
- EU Directive covers domestic clients; CDM 2007 did not
- EU Directive requires coordination, where more than one
contractor; CDM 2007 based this requirement on project duration
Practical – not well suited to SMEs and smaller construction sites
- too complex and bureaucratic (still …)? leading to
- Mis-application or over-interpretation (adding further bureaucracy)
- “Competence” not well understood (especially in the corporate sense)
- “Core competence” assessment too burdensome
o Driven by process, not output
o Often bought in from 3rd party providers
- Coordination role not properly embedded in preconstruction phase
Objectives and solutions
From a legal perspective, the intention is to seek compliance with EU Directive 92/57/EEC (finally …)
From a practical perspective, the intention is to make a simpler, more streamlined and more proportionate system Fewer HSE notifications Coordination by principal designer Standalone “competence” to be replaced by project specific:
- Skills
- Knowledge
- Experience
- Organisational capability
CDM 2015 - Application
CDM 2015 applies to all construction work in Great Britain There is almost no exclusion for domestic or small projects However, there is a distinction made between those projects which are
notifiable to the HSE and those with one contractor or multiple contractors
A project is notifiable where:
- Construction work is scheduled to last longer than 30 working days and have more than 20 workers on site working simultaneously at any point, or
- Construction work is scheduled to exceed 500 person days CDM 2015 applies throughout a project: the client has duties before,
during and after construction
CDM 2015: the end of CDMC
Client (Regs 4-7)
Principal designer (Regs 8-12)
Principal contractor (Regs 8 + 12-15)
Designer (Regs 8-10)
Contractor (Regs 8 + 15)
Competence assessment
Competence was poorly understood Often the foundation of prosecutions following
accidents with Defendants unsure as to how they would prove competence
Now a more prescriptive approach Aim is to make competence assessment easier Elements of “competence” identified:
- Skills
- Knowledge
- Experience
- Organisational capability Person responsible for appointing a designer or
contractor must take reasonable steps
Competence assessment (contd.)
Organisation capability is the policies and systems that an organisation has in place to set acceptable health and safety standards and the resources and people to ensure the standards are delivered
‘Sensible enquiries’ (para 60, HSE guidance) should be made – PAS91 sets out standardised pre-qualification questions which is one way of assessing organisational capability
‘Due weight’ should be given to membership of professional institutional body (para 62, HSE guidance)
Transitional provisions
Until 6 April 2015, CDM 2007 remains in force, so all projects will need to apply to CDM Co-ordinator
After 6 April 2015, CDM 2015 came into force and CDM 2007 was withdrawn
Between 6 April 2015 and 6 October 2015, transitional arrangements apply
Two scenarios:
- Projects with no existing CDMC or PC
- Projects with an existing CDMC
It starts now – transitional provisions
Projects with a CDM Co-ordinator
- CDM Co-ordinator may remain in role until 6 October 2015
- During that period, he must discharge the obligations set out in para 5 of Schedule 4
- If the project is incomplete as at 6 October either:o A principal designer should be appointed; oro A principal contractor may complete the H&S file
It starts now – transitional provisions
Projects under construction with no CDM Co-ordinator
- A principal designer must be appointed as soon as possible
- A principal contractor must also be appointed
- If principal contractor is appointed but no principal designer, the principal contractor must prepare/complete the H&S file
Enforcement issues
Clarity and understanding regarding roles and responsibilities by all parties involved
Will take time for inspectors to implement CDM 2015 in practice Watch out for FFI invoices and Notifications of Contravention in the
meantime – is the time spent reasonable? Are the material breaches correct?
Check carefully any Prohibition or Improvement Notices – are they correct?
Competence still likely to be a battleground but CDM 2015 provides guidelines to help the industry
Likely that HSE will still default to general duties with prosecutions citing CDM breaches as particulars
What happens when it goes wrong?
Statutory Notices Criminal investigation and prosecution Companies and individuals Unlimited fine and/or 2 years’ custody Director disqualification up to 15 years
Sentencing
Health and Safety Offences ActRemoval of cap in the Magistrates’ Court (post 12 March 2015)New sentencing guidance in 2016Increase in fines inevitableMore trials?More Newton hearings?
CDM 2015 - conclusion
Clearer and simpler? More streamlined and less bureaucratic? Cheaper to implement? Likely to improve safety on smaller sites?
Points of contact
Rhian Gilligan, Legal Director
Safety, Health, and Environment Regulatory Department
Direct Tel. 0161 240 2580
Mobile. 07920 218071
Jason Bleasdale, Partner
Casualty and Healthcare Department
Direct Tel. 0161 240 2881
Mobile. 07701 283747
Ophelia Bellio
Facilities Manager – Facilities & Property, Ricoh UK Ltd
#BIFMCME
Jason Bleasdale
Partner in the Casualty and Healthcare Group, Clyde & Co.
#BIFMCME
ESOS – AN OPPORTUNITY OR A COMPLEX BURDEN?Jason Bleasdale, Partner
Clyde & Co Claims LLP
Background
Energy Savings Opportunity Scheme (ESOS)
This new legislation has been implemented so that the UK can comply with Article 8(4) of the European Energy Efficiency Directive
Energy efficiency audits will be required by all large undertakings in the UK
It is estimated that this will cover in excess of 10,000 such organisations
Deadline for energy efficiency audits to be submitted: 5 December 2015
Timeline
31/12/14 – Qualification Date (no need to report this)
05/12/15 – Compliance Date (this needs to be reported)
Process is to be repeated every 4 years
Qualification: ‘large undertakings’
At least 250 employees (anyone with a contract of employment regardless as to whether or not they are part time or full time)
Annual turnover over €50m and an annual balance sheet total of €43m
The trade or business of the organisation is irrelevant provided the criteria of an undertaking (Section 1161(1) of the Companies Act) 2006
Comprises part of a corporate group (with this including a UK undertaking which meets the above criteria)
Any entity which is subject to the Public Contracting Regulations is excluded from ESOS
Qualification – further considerations
Details are assessed on the basis of the last accounts prior to 31 December 2014 (as submitted to Companies House)
If there are changes after the qualification date then these are not material
If an organisation is sold by a qualifying organisation through the period 31 December 2014 to 5 December 2015 then there is a need to comply with ESOS
There is no need for audit of any assets and supplies sold or acquired during the period 31 December 2014 to 5 December 2015
Keys steps
1 Conduct an ESOS assessment
2 Conduct energy audits
3 Identify energy saving opportunities
4 Utilise a lead assessor to cover off items 1-3 above
5 If the large undertaking/company is fully covered by ISO50001 then there is no need for the assessment and audit process to be followed and the certification alone will suffice
6 In the normal course, obtain sign-off from a single Director
7 Thereafter, ensure notification of the scheme administrator of ESOS to prove compliance
ESOS assessment
Any existence of ISO 50001 certification? If not, then proceed as follows:
- Calculate the total UK energy consumption. This calculation is relevant to assets, transport and organisations which the UK group undertaking(s) held responsibility for between 31 December 2014 and still own on 5 December 2015. Unless the supplies are to disaggregated subsidiaries (see below)
- Identify the 90% of total energy consumption (‘Areas of Significant Energy Consumption’). There is some flexibility in relation to this. N.B.: utilise any coverage by ISO 50001, Green Deal, DECs and/or existing audits which meet the ESOS criteria. In addition, unconsumed supplier rule – where not used and yet it can be measured or reasonably estimated/calculated
ESOS audit Establish which audits need to be undertaken prior to 5
December Requirements to produce a compliant audit are as
follows:
- Use 12 months’ verifiable data (audit can have been done any time between 6 December 2011 and the notification date provided it meets ESOS requirements)
- Obtain an analysis of the energy consumption and energy efficiency (utilising 12 months’ data to calculate, but this data must be post 31 December 2013)
- Pinpoint practical ways to improve energy efficiency
- Lead assessor determines any necessary site visits
- Recommend cost effective ‘Energy Saving Opportunities’
- Pinpoint relevant estimated costs and benefits of the ‘Energy Saving Opportunities’ recommended
ESOS lead assessors
Criteria:
Can be internal or external
Belonging to an ‘approved register’
Required to sign off the work himself/herself but can use analysis from others
Where there is an external lead assessor then there is only a need for ESOS sign off by one Director
Where there is an internal lead assessor then there is a requirement for sign off by two Directors
The Directors simply confirm that they have reviewed the findings. There is no specific form for this sign off to take
Sign off and record keeping
Notification is done online to the EA No need to submit energy data or the improvements
previously identified: simple organisation factual details will suffice
Absolute requirement for such notification to be submitted by 5 December 2015
Evidence pack needs to record compliance in line with the following
- Identified cost effective Energy Savings Opportunities
- Details of both the ESOS assessment and also the audit (where applicable)
- Identification of any non-compliant areas and equally certification for alternative compliance routes
- Confirmation and a formal record of the sign off by the lead assessor
Compliance and enforcement
Compliance Notice Enforcement Notice Penalty Notice
- Civil penalties are triggered for failure to notify, failure to maintain records, failure to undertake an energy audit, failure to comply with a Compliance Notice, an Enforcement Notice or a Penalty Notice and for making a false or misleading statement
Any appeal must be specifically based upon an error of fact, error in law or unreasonableness
Points of contact
Jason Bleasdale, Partner
Casualty and Healthcare Department
Direct Tel. 0161 240 2881
Mobile. 07701 283747
Rhian Gilligan
Legal Director, Safety Health and Environment Regulatory,
Clyde & Co.
#BIFMCME
CONTROL OF MAJOR ACCIDENT HAZARDS REGULATIONS 2015 (“COMAH”)
Rhian Gilligan, Legal Director
Clyde & Co Claims LLP
The history
SEVESO 1976
EU directives
Transposition into UK law via COMAH
Who does COMAH apply to?
Manufacture, store, use “dangerous substances” in bulk quantities“Dangerous substance” – schedule 1Nature & quantity of substances “Upper tier” and “lower tier” sites
Why the change?
Alignment with CLPBuncefield disaster December 2005BMIIB findings
Who is the regulator?
The Competent Authority:-
Health and Safety Executive
Environment Agency
Natural Resources Wales
Office for Nuclear Regulation
The role of the competent authority
Information disseminationExamination of safety reportsIdentification of “domino sites”Plan for inspectionEnforcement
What do ALL COMAH sites have to do?
Take all measures necessary to prevent MAHLimit the consequences of a MAHNotify & liaise with CAPrepare, submit & implement MAPP (& revise as appropriate)
What are the extra requirements for an upper tier site?
Submit safety report containing specified information to CA
Prepare, review & test emergency plan
Put the plan into effect in the event of an emergency
Provide information to those in the area of the site
What about the local authority?
Prepare, review & test external emergency plans for upper tier sitesPut the plan into effect in the event of an emergencyTake certain steps if a major accident occurs
Summary of key changes
Changes in tierChanges in classificationSafety reports to be reviewed & amended to reflect CLP changesDisclosure of safety reports – case by case basisUpdate notificationsEmergency plans
Point of contact
Rhian Gilligan, Legal Director
Safety, Health, and Environment Regulatory Department
Direct Tel. 0161 240 2580
Mobile. 07920 218071
Thank you
Enjoy the networking!
#BIFMCME
