Regulatory Outlook | Health and Safety | February 2020

Current issues

Building Safety | Far reaching and rapid reform?

The publication of a new Ministry of Housing, Communities and Local Government consolidated Advice Note provides further clarity to owners of high-rise residential buildings. This advice covers the use of aluminium composite material cladding, high-pressure laminate panels, external wall systems and fire doors, and makes it clear that owners of residential buildings below 18 metres need to do more to address building safety and take appropriate action where necessary.

In a clear signal that the government wants to speed up progress, the Health and Safety Executive (HSE) has been asked to set up a building safety regulator in shadow form immediately, ahead of it being fully established by legislation. The new regulator will oversee the introduction of a more stringent regime for ensuring safety in the design, construction and occupation of high-risk buildings.

In Focus | Responsible business

Which aspects of responsible business are driving the regulatory agenda?

Health and safety regulation at its core is about social responsibility – in particular, the responsibilities that a business owes to protect the health and safety of its workers and others affected by its operations.

In recent years, there has been an increased emphasis by the HSE and by employers on broader concepts of health and wellbeing, alongside more traditional physical safety risks. The HSE has identified work-related stress as one of the top three causes of work-related ill health and it is an issue that is likely to have a growing influence on the regulator's agenda.

We are also seeing an increasing focus on the need to demonstrate transparency and accountability, as a key part of being a responsible business. Regardless of the industry sector you operate in, what your business says about how it values and approaches health and safety is always going to be important. However, considering what information will be made public, when and how requires a careful risk balancing exercise from a responsibility but also a legal risk standpoint.

The most recent example of the legal difficulties between transparency and the right against self-incrimination has been demonstrated recently in the Grenfell public inquiry, where interested organisations requested reassurance that evidence provided in that forum would be incapable of use in a prosecution against them.

The clear direction of travel on what the public expects from businesses is towards full disclosure. The first to face legal requirements around this are likely to be public bodies or those dealing with public contracts. Opposition MPs had previously introduced a Public Authority and Accountability Bill (or "Hillsborough law"), aimed at placing legal obligations around public accountability on public bodies in defined scenarios. There have been calls to re-introduce the Bill, although this is not part of the government's current legislative agenda.

In the absence of legislative obligations, internal (employees) and external (consumers, investors) perceptions will be the main drivers for businesses.

Are responsible business considerations having an impact on the tools that regulators are using?

The HSE as the key regulator in this space already has significant powers within the Health and Safety at Work etc. Act 1974 to require information, These powers are regularly used. Other economic regulators are now also starting to place emphasis on health and safety management, such as OFCOM, which launched a consultation around protecting participants on TV shows.

We are also watching with interest the impact of research lobbying from the US Centre for Safety and Health Sustainability (CSHS) in the US around the value of 'human capital' and their view that public companies listed on stock exchanges should be required to report on health and safety issues relevant to sustainability indices.

The collation and publishing of health and safety data and management approach does support a responsible business agenda and is absolutely something that all businesses should and will increasingly have to embrace as a regular part of their safety management approach going forward.

Which of the recent or upcoming developments are based on international consensus or agreements?

The work of the CSHS on human capital is being driven from the US but its focus on public companies listed on international stock exchanges means that this could have a wide ranging international impact.

As consumer and investor interest in responsible and sustainable supply chains (of which safety is a significant part) grows, the drivers are not restricted to a business's home nation.

What are the main challenges for businesses in complying with these developments?

In a climate where there is little consistency of reporting, the risk is that the perception of a business's approach to health and safety can be easily misinterpreted if data alone is relied on. In the rush to be accountable and disclose information, context and accuracy can be missed.

A responsible business will wish to comply with new legislation and trends on public reporting but will also devise its own strategy as to how it demonstrates its responsibility in this area.