Do you need a Good's Vehicle Operators Licence?
If any of your vehicles are over 3.5t gross weight then the answer is yes, you’ll need to have an operator’s licence.
There are 3 licence classifications that you could apply for depending on what you do with your vehicles.
But which one?
- Standard National Licence
- Standard International Lincence
- Restricted Licence
Its worth noting that the Restricted Licence only allows you to carry your own goods and not anyone else’s for hire or reward. For example, if the operator carries materials to build a stand for reward this category will not apply; or if a stand contractor carried exhibits belonging to his exhibitor this too would be in breach of a restricted licence, so options 1 and 2 are the best; although Option 2 may change at some point in the future subject to Brexit ramifications which are still unknown.
As with everything there are exemptions, which as an industry, we dont appear to fall into.
The gov.uk website pages on this subject provides a good source of information with easy to follow instructions to the process and provides all the detail of what you need to do and have in place to obtain a licence.
November 2018
Jail Sentence for Company Director The managing director of a waste and recycling company in Liverpool has been sentenced to eight months in prison for breaching Section 37 of the Health and Safety at Work Act (HASAWA) which covers offences linked to the consent of, or neglect by, any director, manager or similar company officer after a worker was fatally crushed by a baling machine’s hydraulic ram in 2010. His maintenance engineer and operations and safety manager were also given custodial sentences while the business was fined £700,000. The victim was operating a baling machine which fed waste or recyclable material into a compaction chamber when it became blocked. The court heard that he had received little training and “clearly misunderstood how the machine worked, or the horrendous risk”. In attempting to clear a blockage, without turning the machine off, the victim entered it by crawling through a small opening. As he stood up and tried to clear the blockage, the machine automatically activated and he was crushed by hydraulic ram. Deliberately interfering with a safety device (an offence against Section 8 of HASAWA) might seem to be an obvious offence easily avoided but how many times are venue fire doors propped open, keys left in unattended fork lift trucks, driver restraints not worn while they are clipped in behind the driver? The time between the offence and the conviction was largely down to appeals in which defendants variously attempted to claim no direct responsibility. However, the risk of a serious accident should have been obvious had there been basic monitoring and oversight in place which directors and managers have a legal duty to undertake. Arguing you did not know about a serious safety failing when you should have known is not a defence. It is worth considering when you next encounter a routinely wedged open fire separation door in a venue. Legal Privilege The basis of this concept is that a conversation between a client and their lawyer is legally privileged i.e. confidential and cannot be disclosed to other parties. Similarly if a company commissions an investigation into accident to gather evidence that may be part of their defence in consultation with a lawyer then that document itself can be deemed to be ‘legally privileged’. This is a useful device that allows companies to conduct a thorough investigation without fear of the report being used against them in court. Last year a judgement in a financial fraud case1 narrowed the circumstances in which legal privilege could be claimed leading to the HSE being more assertive in demanding access to documentation. This has now been overturned by the Supreme Court restoring the principle of lawyer/client confidentiality. However it isworth considering the criteria that will still apply. The document’s dominant purpose has to be advisory in reasonable expectation of litigation and a lawyer has to be have been instructed. There also needs to be some semblance of confidentiality. If the report or its findings have already been circulated, it could compromise its status as being legally privileged. A good health and safety policy should contain the protocols for dealing with accidents and set out or refence a procedure for establishing legal privilege where required. 1. Serious Fraud Office v ENRC New Sentencing Guidelines for Gross Negligence Manslaughter (GNM) The new guidelines applicable from 1 November will lengthen the terms for GNM dependent on the level of culpability extending the maximum term for the most serious offence to 18 years. As well as a prison sentence the court can disqualify the defendant from being a director for up to 15 years. Such cases are rare (only 5% of workplace fatality prosecutions involve a manslaughter charge against an individual) and there were only four such prosecutions in the last 12 months. One of these involved the prosecution of a couple operating a bouncy castle that blew away killing a young child each of whom received three years for GNM. The current test of GNM was set in 1994 based on the civil law concept of a duty owed and breached resulting in loss. A fourth element was added that the breach of duty had to be a substantial cause of death. The prosecution does not have to prove any harmful intent, only a harmful act or failure to act. This could be as simple as a fatality following a failure to properly check a temporary structure or failing to advise an employee of the medical risks arising from travelling to a particular country. It is significant that in the final draft of the guidelines the requirement for the awareness of risk was removed thus enshrining the concept that not making yourself aware of the risk is in itself negligent. Once again the importance of risk assessment comes to the fore. In a case of GNM the failure to conduct or acquaint oneself with a relevant risk assessment would undermine any credible defence. November 2018
Legal Update on Serious Health and Safety Offences
Three recent developments highlight key aspects of dealing with serious health and safety offences.
A joint investigation by HSE and Police found that the electrical safety interlock system that would have prevented workers from entering the machine while it was still connected to the power supply had been overridden two months earlier by the engineer after the circuit became damaged.
Five Ways to improve mental wellbeing in the workplace
The Government's Department of Health advises that one in four of us will experience mental ill health at some point in our lives. It is therefore important that employers and their staff take steps to promote positive mental health and support those experiencing mental ill health. The workplace has come a long way over the last 10 years in recognising the importance of employee mental wellbeing. However, many organisations still need to understand why this is relevant and are struggling to address the challenges and how to remove the stigma in the workplace. There are many influencing factors at play, however here are five easy steps you can take to help drive improvements to mental wellbeing in your workplace:
1. See mental health and wellbeing as a priority
The government produces a series of policies and guidelines to support mental health in the workplace – but these need careful implementation. All policies need the support of managers to create a plan for how to use such policies and how to read the signs of employees struggling with their mental health. (see latest government legislation here)
Having open dialogue with teams and ensuring teams are supported is a crucial first step in creating the right culture for mental health and wellbeing welfare. Managers can also ensure a work / life balance for employees to help reduce work related stress.
2. Take a proactive approach to mental health and wellbeing with your employees
Anticipate issues and address them with teams and employees. This is more effective than waiting for employees to come to you and you having to be reactive.A proactive approach can be in any form of a campaign – starting with a conversation, or a short employee survey, through to an online eLearning campaign or a series of podcasts.
3. Get better insight into the benefits of mental health and wellbeing in the workplace
Positive effects on performance can and should be measured. Find ways to look into this so you can do more of what works! For example, taking meetings outside or having catch up with employees over a walk and a coffee in a different environment can really help reduce stress and anxiety, resulting in better relationships and stronger conversations.
Collaborate with other team managers to get insight into how they are managing their staff and find solutions that would work with HR for example having a sports and social club that is run by the staff for the staff – this helps make work a meaningful place to work, somewhere friendships are formed and not just where business is done. This can really help engagement amongst the staff but allow employees to look forward to key social dates – as well as improve collaboration across different departments.
4. How will you measure the ROI on a wellbeing strategy?
Achieving a holistic, inclusive wellbeing strategy, that incorporates mental health, is a challenge that many employers grapple with.
Becky Thoseby, Department for Transport’s Group Head of Wellbeing asked employees to define what wellbeing means to them - creating a person-centred approach to make wellbeing truly inclusive.
“It means that we can offer each individual what they need for their own condition and circumstances, rather than seeing them through the lens of one issue. "We believe each person is their own best expert and has the right to define what wellbeing means to them, and the responsibility for that lies with the employee. We expect them to take care of themselves, be open with their line manager about their issues, and ask for help when they need it. The role of the employer is that of an enabler, or facilitator – and part of this is meeting our legal obligations towards our employees. These elements are largely covered by Health & Safety and Employee Relations colleagues, both of whom I work closely with” - Becky Thoseby, Department for Transport’s Group Head of Wellbeing
Some symptoms of mental illness can manifest themselves as poor performance at work, missing deadlines, failing to get work done. However, by having a clear element of expectations on the employee to share their thoughts on their own wellbeing, this means the employer can act as a facilitator and enabler, to help resolve the issues.
5. Best practice examples
The entire business world is striving to learn from and benefit from best case examples of what works to address mental wellbeing in the workplace. The truth is, that no one team or individual employee in any given company will have the exact same mental health challenges (causes, coping mechanisms or even the factors contributing to the mental wellbeing at work) as another. So all cases are unique.
For that reason, a company must create a culture of sharing what is working, what doesn’t work and what worked best in each given scenario. There will be new ideas that help drive change that will work one year, but not the next. So it is a constant cycle of improvement that must be shred openly within the company and with their employees.
Virtual Training - ESSA e-learning
There is a virtual training course available via the ESSA e-learning Virtual College which covers Stress and Pressure in the Workplace. The course covers how, by gaining understanding of what stress and pressure are and what factors affect them, you can have an influence on the wellbeing of your team.
Find out more about the course
Source: Virtual College
November 2018
The Green Guide
The new ‘Green Guide’, (Guide to Safety at Sports Grounds 6), the Sports Grounds Safety Authority’s (SGSA) guide to the Safety at Sports Grounds Act will be published in October 2018.
Whilst it is only intended to be relevant to sports grounds, it has wide applicability in the events industry generally and some of the changes, both around the physical aspects and safety management could be a harbinger of a shift in thinking on event safety and crowd management generally.
Probably the most important change is that the Ground Safety Officer will now have responsibility for the safety and security of all people present not just spectators.
Outside the SGSA’s remit the requirement for a professional safety and security officer is only an implied legal duty of care and considered best practice rather than being required (de facto) by law as it is for sports grounds with a Safety Certificate under the 1975 Safety at Sports Grounds Act.Also, in most venue based events the organiser/promoter takes the lead on safety with the venue safety staff playing a supporting role.
The review of the guide has highlighted the need to address the issue of persistent standing in areas designed for seating where there is no barrier in front of spectators to prevent them falling or being pushed forwards.The strengthening of the Ground Safety Officer’s role in this way as the single ultimate authority poses the question as to whether this model should be applied to other high risk events especially where large crowds are involved. The sports ground will also have to take the lead when considering ‘Zone Ex’ i.e. the area immediately outside the stadium. In terms of emergencies the concept of ‘invacuation’ and variations on the need to simply evacuate has been introduced - termed ‘exceptional evacuation’. Other new sections include crowd modelling and crowd flows, fire engineering, management of concourses, and the inclusion of new technology in smart stadia.
Various seating/standing designs have been considered but the law does not permit standing in venues in the top two divisions in England and Wales. This issue is being reviewed at ministerial level but is obviously too late to be included in the guide. However, whatever the outcome of the review, the issue can no longer be ignored and this has implications for any stadium or arena with tiered seating where persistent standing is an issue since it would be hard to defend not taking action when the sports grounds industry is doing so.
The existence of the SGSA and the Green Guide are ultimately underpinned by Act of Parliament which is not replicated elsewhere in the events industry so comparisons of the Green Guide with other industry guidance must be viewed in that context. However, those parts of the events industry which do publish or endorse safety guidance should review the new document for applicable lessons. Perhaps the most applicable point is the recognition by the SGSA of important shifts in the legal, socio/political and technological environment in which we operate and the need to reflect those changes in current official guidance.
September 2018
Calling Time on Dust
A number of organisers are calling for stricter controls on the creation of dust, in particular wood dust from chip board and fibre board during the construction phases at an event. Due to the potential health problems, wood dust is covered by the Control of Substances Hazardous to Health Regulations (COSHH). Under COSHH, employers have a duty to carry out a suitable and sufficient risk assessment and take steps to ensure they prevent or adequately control exposure. The Provision and Use of Equipment Regulations (PUWER) requires that equipment should be used as intended which means that if fitted for dust extraction then it should be used
The g-Guide requires that dust extraction is used on power tools where appropriate and the eGuide states that ‘wood working machinery shall be used with due consideration for the effect on others nearby (noise and dust)’. Notwithstanding dust is a problem in event construction possibly because few realise the true extent of the hazard.
Dust from fibre and chip boards is carcinogenic because of the glues used in manufacture. Other effects of dust in general include asthma and other lung related conditions. The dust can also cause fires and explosion. Failing to extract dust at source means that it can collect in floor ducts around electrical cabling where it is a fire risk. It can also cause faults in smoke detection equipment. A firm in Tyneside was recently prosecuted and fined £800,000 following a wood dust explosion at its plant which fortunately did not cause injury.The g-Guide requires that dust extraction is used on power tools where appropriate and the eGuide states that ‘wood working machinery shall be used with due consideration for the effect on others nearby (noise and dust)’. Notwithstanding dust is a problem in event construction possibly because few realise the true extent of the hazard.
This is a fairly easy risk to control. Ideally cutting and sanding should be done outside. If this is was not possible then previously it should only take place inside if dust is extracted at source into a dust bag or other container; however please note that the HSE now expect any wood cutting done outside to also have extraction/vacuum at the source of the cut – they do not see ‘being outside’ as sufficient. This has now been updated and reflected in the FAQs in the COSHH section of the HSE’s website. This came to light after the HSE visited an event construction site. .Failure to comply should result in the equipment being removed from site until it is compliant. The pressure for improved practices should come from the event staff who have to suffer the effects themselves and frequently complain about it at industry forums.
August 2018
Acoustic Shock
Acoustic shock is on the agenda for the next HSE- chaired Joint Advisory Committee in Entertainment (JACE) meeting which is the event industry’s link with the HSE. This follows the success of a Royal Opera House (ROH) viola player who brought a claim against the ROH for acoustic shock whilst performing a piece from Wagner. The case sets a new precedent since acoustic shock can result from a single exposure in the 82 to 120 dB range rather than the effects of repeated exposure to harmful levels of noise over a long period.
Comment by event industry professionals is only just beginning to expose some of the potential ramifications. There will definitively need to be a reassessment of pyrotechnics and other single loud noises.The impact will not just be in the event areas but in workshops and warehouses where there can be exposure to noise. The claimant in the case was not wearing hearing protection but still won his case. This will inevitably lead to a review of the extent to which employers should enforce the wearing of hearing protection. This was only a civil case so did not consider compliance with the Noise at Work Regulations however it is reasonable to assume that the HSE will conduct a review which could lead to a tightening of the regulations in future. The best approach in the meantime is to ensure compliance with existing law and guidance and review compliance with the wearing of hearing protection where required. August 2018
Fire Legislation
How will planned and Predicted Changes to Fire Legislation Affect the Events Industry?
The Grenfell Enquiry will force a fundamental review of the existing fire legislation which has been in place since 2005. The potential outcomes could be very challenging for the events industry. It is entirely foreseeable that either all or large parts of Building Regulations will become directly applicable to Temporary and Demountable Structures. The problem, as was the case for CDM will be that those tasks with redrafting new legally applicable standards will not necessarily have any knowledge of, or stake in, the events business. Before the events industry begins to debate this issue and prepares for any consultation on changes it is worth reviewing the current status of fire safety legislation and guidance as it applies to events.The second aspect is that the required competencies for fire risk assessment is likely to be raised. At present there are insufficient numbers of competent fire risk assessors even for the existing law. The overall impact in these changes could be very costly and create a situation where event businesses are forced to take risk on compliance because the resources are not there to meet the new standards.
The following is an overview and advice should always be sought from a competent professional regarding any particular venue or event.
March 2018
Fire Legislation Review
Temporary and Demountable Structures Guide
Temporary and Demountable Structures Guide Fourth Edition
The Institute of Structural Engineers has produced the fourth edition of the Temporary and Demountable Structure Guide (TDS Guide). The technical guidance is much the same, although they have relaxed the independent site checking requirements for fabric structures, no doubt following pressure from MUTA (trade association for marquees and tents). The non-technical sections have been updated and not surprisingly the CDM regulations are dealt with for the first time. The TDS Guide should be in the library of every operations team that deals with complex and demountable structures. It can be purchased from the Institute of Structural Engineers at www.istructe.org
February 2018
HSE New Guidance on Fairground Rides
The HSE has published an updated version of HSG175 Fairgrounds and Amusement Parks: Guidance on Safe Practice which is downloadable from the HSE website www.hse.gov.uk. This publication provides guidance for all those involved in the organisation, operation and management of fairgrounds and theme parks. It is primarily for ride controllers and operators, fair organisers, designers, manufacturers, importers and suppliers of fairground rides and ride inspection bodies. It will also be useful to event organisers and employees, the self-employed and contractors working in the fairground and amusement park sector. This third edition gives a clearer explanation of what action to take and why. It has been co-written with the Fairgrounds Joint Advisory Committee to set out measures for those involved in the industry should take to reduce risks, work safely and comply with the law.
Health and Safety Accountability
Fatal Fall Costs Retailer Iceland £2.5 million
February 2018
Event Organiser and Event Managers Acquitted of Health and Safety Charges Following a Fatal Accident
In 2014 a spectator at a cycle race in Wales was killed when a bike ran into her after it crashed off the track. The local council brought charges under the Health and Safety at Work Act (HASAWA) against the British Cycling Foundation (BCF), the self-employed Event Manager and a Volunteer Marshal. The essence of their case was a lack of attention to detail in the planning and a failure to discharge a duty to ensure that spectators were separated from the hazard of cycles coming off the track. BCF successfully defended themselves on the basis that they were not the sanctioning body but merely set the rules for the sport and that Welsh Cycling had actually supervised the race. The Event Manager’s defence was that he had submitted a risk assessment to Welsh Cycling who issued a permit for the race. There had never been an accident with a bike leaving the track at that point during previous events which is why the area was not taped off. The volunteer marshal escaped prosecution as the judge ordered that the prosecution had submitted insufficient evidence in his case.
- Despite the acquittals
- the case highlights some interesting issues not least the vulnerability of the event staff to prosecution where they are managing genuine risk to life. Most event managers understand that a company has a duty of care to those not in their employment e.g. visitors and spectators etc under s3(1) of HASAWA but it is less well understood that the duty extends to the self-employed (in place of an employer) under s3(2). All individuals, including unpaid volunteers have duties under s7 of HASAWA to take reasonable care of the health and safety of others. In health and safety a criminal case is not a ‘whodunnit’ with a single culprit caught with a smoking gun. As this case shows, action can be taken against individuals and companies at all levels for the same accident. Hiring a professional event manager does not in itself protect an organisation from prosecution even if that event manager is prosecuted. Whether or not this case involved a civil law suit is not in the public domain but it should be clear that merely requiring event companies and the self-employed to hold insurances is no protection against a criminal prosecution.
- in this instance, an association such as the BCF is vulnerable to prosecution even though it was not actually running the event. There is a need to ensure that accountability for health and safety at all level is understood especially when the event is the product of a number of different agencies. Event venues, for example, do not normally own the events run in them but they do set the rules for safety in many cases so are not entirely immune to scrutiny from the authorities in the event of a serious accident.
- the case highlights some interesting issues not least the vulnerability of the event staff to prosecution where they are managing genuine risk to life. Most event managers understand that a company has a duty of care to those not in their employment e.g. visitors and spectators etc under s3(1) of HASAWA but it is less well understood that the duty extends to the self-employed (in place of an employer) under s3(2). All individuals, including unpaid volunteers have duties under s7 of HASAWA to take reasonable care of the health and safety of others. In health and safety a criminal case is not a ‘whodunnit’ with a single culprit caught with a smoking gun. As this case shows, action can be taken against individuals and companies at all levels for the same accident. Hiring a professional event manager does not in itself protect an organisation from prosecution even if that event manager is prosecuted. Whether or not this case involved a civil law suit is not in the public domain but it should be clear that merely requiring event companies and the self-employed to hold insurances is no protection against a criminal prosecution.
Any event, at the end of the day, is just a concept and after the event there is usually no physical evidence of it having taken place.
Moving Vehicle Safety in Event Construction
The AEO/AEV/ESSA health and safety working group held on 26th April considered the issue of moving vehicles in the context of CDM 2015. The HSE has highlighted workplace transport in event construction as one the key risks in its strategy for events in 2017 and beyond1. In follow up, this update looks at the legal framework and industry guidance that sits behind this issue and considers the challenges faced by the industry to drive improvement. The Health and Safety at Work Act (HASAWA) is very clear in the requirement for organisations to discharge a duty of care to employees and others and for those employees in turn to take reasonable care of themselves and others and follow the appropriate rules and guidance.
In 2013, a worker was killed when a load fell from a forklift. The lift was not properly planned. Subsequently the MD was charged with causing death by gross negligence, prosecuted under Section.37 of HASAWA and received a two-and-a-half-year prison term. The driver was prosecuted under Section.7 of HASAWA and received a 6-month prison term. The company RK Metalworks and the lifting company were fined a total of £400,000 for breaching Sections.2 and 3 of HASAWA. This is a perfect illustration of how the law could and probably would be applied to a fatal accident involving a vehicle in event construction.
It should be noted that the trial took place before the change in sentencing guidelines in 2016 and if the same incident occurred now in an exhibition we could expect a fine approaching or even exceeding a million pounds for the same offence. This highlights an issue for the events industry where fines are now based on the size of the company, the potential for harm and the degree of culpability as outlined in previous updates.
CDM 2015 introduced specific duties under criminal law for managing construction in the events industry. Specifically, Regulations 27 and 28 address the issue of traffic management and state that ‘a construction site must be organised in such a way that, so far as reasonably practicable, pedestrians and vehicles can move without risks to health or safety.’ The exact meaning of ‘reasonably practicable’ is set out in the March 2017 update which is essentially that an employer can exercise judgment in balancing the reduction of risk against what it costs to achieve it. The problem for the events industry is that, as with work at height, there appears to be a gap between what the HSE would see as being reasonably practicable and the practices which the industry recognises as being less than ideal but none the less routinely tolerated. For example, the HSE regards the use of a banksman as a control of last resort in the absence of other controls, where in event construction it is routine and often the only control.
One of the key requirements of CDM is the Construction Phase Plan (CPP) and it follows that such a plan must not just set out when the construction phase is in operation but also where it applies. This has led to conflict and confusion between organisers and venues as to who is or should be in control of the loading bay areas and access routes to cargo doors. It will obviously differ between venues and events but whatever the case it must be clear who owns the Client duties under CDM in these areas and this should be set out in the CPP. The HSE would be quick to exploit any confusion if a serious incident were to occur where it was not clear.
HASAWA and CDM are the most likely instruments of prosecution by the HSE but it is adherence or otherwise to industry guidance and best practice that would most likely provide the evidence for a prosecution. HSE guidance can be found in the form of A Guide to Workplace Transport Safety (HSG 136 3rd Edition) and Rider -operated Lift Trucks (L117 3rd Edition) both of which can be downloaded free from the HSE website. The various event sectors have guidance which looks at traffic movement most specially the AEV eGuide which states that ‘Where practical, physical separation between pedestrians and vehicles should be in place’. ‘Where practical’ leaves quite a lot to discretion. Most likely the burden of proof would fall to the organiser to prove that the arrangements were satisfactory and legally compliant which would be especially hard in the event of an accident which could be taken to prove the opposite.
The problem is that the law and the HSE’s guidance presumes a fixed site or construction site where there is a degree of permanence which allows traffic systems to be implemented and site rules to become imbedded in a way which is rarely possible over a short but very busy construction phase of a few days. There have been numerous serious accidents with vehicles during event construction resulting in life changing injuries over the last few years. The AEO, AEV and ESSA have recognised that it is beyond the scope of one organiser, venue or contractor to produce an industry solution. It is important that we do so. At an industry level it needs further review as aside from the moral duty to do so, the financial penalties for failure are now so much higher. On an event by event basis those with traffic management responsibilities need to ensure that they have a properly coordinated system in place with an emphasis on pedestrian safety.
Notes:
May 2017
