The past two years have brought with them numerous changes in health and safety legislation. A notable example is the recommendations from Phase One of the Grenfell Inquiry; resulting in the creation of fire and building safety regulations (such as the Building Safety Act 2022). These regulations place onerous responsibilities on existing and newly formed dutyholders. Dutyholders, developers, landlords and those who manage and maintain properties are often surprised at the extent of their health and safety duties and the legal implications of getting these wrong, which could include both criminal and civil enforcement action. Mishcon de Reya's Health & Safety team (led by Kizzy Augustin) has been busy providing both advisory and contentious advice for many clients in the real estate sector.
The benefit of having early, strategic advice
New enforcement options have been created in recent years (ie, the existence of the Building Safety Regulator), and we have seen enhanced powers for existing inspectors working on behalf of the Health & Safety Executive, Local Authorities and the Fire & Rescue Services. Consequently, businesses need to know what their legal duties are – and they need to adopt a proactive, preventative approach to compliance. This is possible through in-person training for all levels of the supply chain – from the Board to operative staff – to ensure that policies and procedures are fully compliant with current standards. Clients put themselves at an advantage if they seek bespoke consultancy advice in advance of the occurrence of any safety risk.
We advise clients on the broad responsibilities incumbent on them as "dutyholders", employers/owners of a business, directors, senior managers, leaseholders, facilities/building management, and anyone exercising control of a building (this can even include investors).
The focus on corporate and personal “accountability” has directed the minds of contractors, designers, manufacturers of construction products and those ‘in control’ of buildings. They are starting to review their current policies and practices to best position themselves in order to defend a potential investigation or prosecution.
Keep up with regulations
Regulators will monitor whether an organisation has proactively reviewed and amended their policy documents, in line with legal requirements and industry themes and trends. We have been engaged by companies to conduct statutory compliance audits of policies; review risk assessments, inductions, and other risk framework documents; prepare responses/requests for information to the regulators; conduct due diligence in advance of corporate transactions; and consider critical issues arising during a specific project (for example, breach of Building Regulations and contractor management arrangements).
Training sessions such as those offered by the Mishcon Health & Safety Team feature legal updates, mock trials and mock 'interviews under caution'. These sessions are invaluable to building risk resilience and preparedness across the organisation. It is also a useful exercise to "stress-test" a company's existing policies and procedures (creating re-enactments of real-life incidents and testing a company's current policies and safety management arrangements.
Support: investigations & prosecutions
Despite the measures organisations take to eliminate risk, incidents can still occur. In cases where a property incident has occurred, organisations will need support in the immediate aftermath and, where appropriate, they should conduct an internal investigation or manage engagement with the external regulators. Early engagement with the regulators will ensure appropriate steps are taken to resolve non-compliance issues and mitigate the likelihood of enforcement action.
The regulators have the power to interview company representatives in the event of health and safety incidents such as a building collapse, the spread of fire in an occupied building, a sub-contractor being injured on a construction site, potential terrorist activity at an event site and an employee electrocution as a result of badly maintained equipment. If someone is fatally injured, the organisation could also be asked to participate in an inquest – where the interests of the company and individuals may need to be protected during questioning from the deceased's family and other interested parties.
There has been a significant increase in the number of prosecutions – and overall penalties – in the real estate sector following the introduction of the 2016 Sentencing Guidelines. Many companies who find themselves in court for breaches of relevant safety legislation and regulations are facing unlimited fines (in the region of £1 million for companies with a turnover of £50 million or more) and up to two years' imprisonment for senior personnel. Those involved in the development, construction, refurbishment or management of buildings must understand that they could hold corporate and personal liability for simply exposing relevant persons to risk, with no need for actual injury.
What's needed
A good understanding of regulations and a proactive risk strategy will help to standardise the industry and ensure that health and safety is no longer just a box-ticking exercise. With all dutyholders now being held 'accountable', they must work together to achieve best practice, share knowledge and achieve regulatory compliance. Seeking early legal advice can significantly help to mitigate the risk of non-compliance and the dire consequences that could follow.
Please contact Kizzy Augustin or any of the Mishcon Health & Safety Team if you wish to discuss the issues raised in this article in more detail.