Health and safety | UK Regulatory Outlook January 2024

The Terrorism (Protection of Premises) Bill

The Terrorism (Protection of Premises) Bill was included in last year's King's Speech and you can read more on the bill in this earlier Regulatory Outlook.

Ahead of formal introduction of the bill into Parliament, the government has said it will launch a consultation on which premises will be caught in the "standard tier" to ensure the right balance is struck between protecting the public and avoiding burdens on small premises. At the time of writing, we are still waiting for the government to launch the consultation, and for its response to the Select Committee's report of July 2023, but expect next steps to be taken early in 2024.

Higher risk buildings

All existing higher risk buildings had to be registered by 1 October 2023. The Building Safety Regulator (BSR) expects to publish a register in the first quarter of 2024, this will list the Principal Accountable Person (PAP), contact details and potentially some basic information about the building. This may be a useful tool for businesses dealing with building owners.

For higher risk buildings in development, there is currently a transitional period in force, until 6 April 2024. This will apply provided construction has sufficiently progressed, and these buildings will continue to be governed by the existing building control regime. However, for new build higher risk buildings in planning and development, the building application process requires additional information and new approvals from the regulator.

The Health and Safety Executive (HSE) has recently published its first three-year strategic plan as BSR. Its roadmap highlights that in spring 2024, the HSE will start to require building assessment certificate applications from PAPs. Once the BSR has required the application, it must be made within 28 days with all the associated information to demonstrate compliance. The duties on PAPs are in force and so they should be collating information and implementing building safety management processes now to ensure compliance with the BSA and in preparation for a building assessment certificate application being made.

Keep mental health of your people on the business agenda

The most recent statistics published by the HSE highlighted, once more, the upward trend in cases of work-related stress, depression and anxiety. With mental health at the forefront of the HSE's Protecting People and Places strategy for 2022 to 2032, we anticipate that it will expect businesses to develop their own strategies to reduce risk and support their people, and active inspections or investigations seem possible.

The HSE has launched a new free online interactive tool for employers. The tool provides six short modules designed to help employers ensure they understand what the law requires of them in relation to stress and mental health and what they must be doing to be compliant.

Online Safety Act

The Online Safety Act received Royal Assent at the end of last year. It introduces significant duties for platforms with users in the UK that host user-generated content or facilitate interaction between users online. We have published a range of Insights on the new Act, including top 10 takeaways for online service providers.

Notable is the introduction of a potential criminal offence for corporate officers if an offence under the Act is committed by the platform that can be said to have been committed as the result of the "consent, connivance or neglect" of an individual officer of the company. This sits around a number of potential enforcement actions Ofcom could take under the Act. It will be interesting to see the approach Ofcom takes to enforcement, and affected businesses/platforms will be well advised to consider the roles and responsibilities they put in place and their overall governance structure for online safety.

Ofcom has also launched two of its four consultations. The first consultation is to help shape the guidance it provides businesses once the Act is in force. The deadline for responses to this first consultation (on illegal harms) is 5pm on Friday 23 February 2024 (see our Insight for more).

The second consultation concerns Part 5 of the Act, which imposes specific duties on service providers that display or publish pornographic content on their online services. Under the Act, these service providers must introduce age assurance tools that are "highly effective" at correctly determining whether a user is a child to prevent children from being able to access such content.

Ofcom's draft guidance aims to assist providers comply with their duties under the Act. It sets out the criteria that age checks must meet to be considered highly effective, which are that they should be technically accurate, robust, reliable and fair.

The consultation closes on 5 March 2024.

Grenfell inquiry report delayed

The Grenfell Tower Inquiry announced in its November update that the official findings on what caused the Grenfell Tower incident has been delayed once again. The report was due to be published last autumn, but the Inquiry has now said that the report will not be published before April 2024. Once the report has been published, we expect to see an increase in action taken by the HSE for breaches of health and safety duties, particularly in relation to fire safety.

Will sentences in health and safety cases increase dramatically as with environmental prosecutions?

In 2024, trends we have seen following prosecutions brought by the Environment Agency (EA) may be followed by courts when the HSE prosecutes health and safety cases.

Southern Water was subject to a record fine of £90 million in 2021, an aggravating feature was failing to cooperate with the EA. The court took a wide approach to "non-cooperation" determining that in not attending in-person interviews under caution when requested (an often standard approach in regulatory cases) and refusing to share information with the EA, the business was considered non-cooperative. It remains to be seen if the HSE, which allows written responses to in-person interviews as its usual practice, will start to insist on in-person attendance and raise this with courts if this is declined. This feature, coupled with the size of the fine generally, are potential indicators as to the direction of travel for health and safety prosecutions which already share a similar sentencing guideline.

We have also seen the Department for Environment, Food and Rural Affairs strengthen its civil sanction scheme and remove the cap of £250,000 for variable monetary penalties. It will be interesting to see whether the HSE might take heed and ask the government to strengthen its own civil sanction regime (beyond the "Fees for Intervention" scheme) to allow for it to impose such penalties rather than rely on sentencing by the courts.

Finally, with an increasing trend of EA prosecutions against individuals, we wonder whether the HSE might be encouraged to investigate and prosecute more individuals.

While the HSE has not explicitly stated any intentions of following the EA's approach, with the crossovers between environmental and health and safety issues, we think this is something to monitor and see whether the HSE differs in its prosecution tactics in 2024.

Changes within the HSE

It has been reported that HSE's budget has reduced by 43% over the last decade and that staff numbers are half that of twenty years ago (now 2400).

In April 2022, the HSE adopted a new system to bring its investigation and enforcement processes in line with other prosecuting bodies. The system provides for an independent legal decision on prosecution, providing an inspector can seek early legal advice on investigations, but also on charging decisions once a principal investigator decides that a case is evidentially ready.

The HSE has restructured its teams – to those advising/inspecting and those investigating (potentially for prosecution) – and an in-house legal team has been created. Additionally, as set out in earlier sections, it is readying itself for its new Building Safety Regulator role.

What does this all mean for health and safety prosecutions or the model adopted by HSE as a regulator? We expect increasing use of enforcement notices and fees for intervention powers that do not mean costly court hearings and great room for challenge – however, following the number of public disasters over the last ten years which have led to calls for increased investigation and prosecution, we wonder if HSE will be revisiting the way in which it supports occupational health and safety in the UK.

HSE issues revised home working guidance

As many businesses continue with a hybrid working format post-pandemic, the HSE has re-issued its home working guidance and provided more resources on what actions employers need to take to protect home workers' health and safety.

This includes resources on the risks of stress and poor mental health as well as working with display screen equipment (DSE). In 2024, businesses should continue to ensure that home workers' health and safety is protected and implement the necessary measures required to comply with their health and safety duties.