Legislation and Guidance Update – October 2020
The Coronavirus Pandemic has brought with it unprecedented challenges for people, businesses and societies worldwide. Recently imposed restrictions to daily life have forced us to quickly adopt different ways of working, learning and connecting with each other.
The additional burdens and concerns caused to businesses because of legislative requirements, staffing and financial aspects of COVID-19 are well recognised. Despite these challenges, it is crucial that businesses continue to address, not just COVID related health and safety issues, but health and safety issues in general and work to prevent injury or ill health, both to ensure compliance with regulations, and to also reduce the burden on health services already under severe pressures due to COVID-19.
Coronavirus has hit all parts of the UK and has required a comprehensive response by government at all levels – local, central and devolved. The devolved administrations have each taken a comprehensive approach to the crisis, and central to that has been the guidance published to help businesses adapt and operate during these uncertain times.
It soon became clear that COVID-19 was not just a societal threat but a matter of risk management also. Back in May, the government published a raft of Working safely during coronavirus (COVID-19) guidance, which has since been updated several times to reflect the changing nature of the Pandemic and the government’s approach to dealing with it. Indeed, following announcements on 22 September, the government’s COVID-secure guidelines will become a legal obligation for a wider range of leisure and entertainment venues, services provided in community centres, and close contact services. Shops, restaurants and other hospitality businesses risk closure or penalties of £10,000 if they do not obey the requirements around maximum group sizes, track and trace and mask-wearing.
And workers have been told that those able to work from home should do so again. Employers should therefore again be focusing on their employees’ home working arrangements, with consideration given to issues such as: how to stay connected; balancing workloads; stress and mental health; and any control measures that may be needed. The use of display screen equipment, for example, will present risks. The HSE advises that, for those people who are working at home on a long-term basis, the risks associated with using DSE must be controlled. This includes doing workstation assessments at home.
For those businesses still operating a workplace, one of the most important steps for it to take is to carry out a COVID-19 risk assessment to ensure the health and safety of workers, customers and visitors. It is vital that employers can confidently manage and reduce the risk of infection from COVID-19, and indeed the transmission of the virus. A comprehensive COVID-19 risk assessment will go a long way in reassuring anxious employees about their safety and health when they do eventually return to the workplace.
After months of (understandably) putting Brexit to the back of our minds…it’s back! And the end of the transition period is fast approaching. While it is still unknown what the implications will be on health and safety in the UK, it is widely felt that Brexit will not result in a dismantling of health and safety standards. While leaving the EU could have an impact on legislation, it is unlikely to be immediate or fundamental.
Whatever the outcome of the latest talks between the UK and the EU to finalise ‘Brexit’, it is expected that the fundamental principles of risk management as enshrined in The Health and Safety at Work etc. Act 1974 and The Management of Health and Safety at Work Regulations 1999 and other statutes will remain.
Post –Grenfell Safety Regime
The horrific circumstances of the Grenfell Tower fire on 14 June 2017 have led to a sea change in UK fire and building safety legislation, and enforcement practice.
After being put on hold because of COVID-19, Phase 2 hearings of the Grenfell Tower Inquiry resumed in early September and it is now underway again. The report of the findings of Phase 1 was published on 30 October 2019, and two significant pieces of new legislation have followed: the Fire Safety Bill, which responds to the Public Inquiry Phase 1 report by clarifying the Regulatory Reform (Fire Safety) Order 2005; and the Building Safety Bill, which responds to the Hackitt review of Building Regulations and fire safety, and will implement all of the recommendations made in that review in respect of high- rise residential buildings.
The Building Safety Bill provides for a Building Safety Regulator, which will have a duty to keep the scope of the regulatory system under review and to provide advice to government when the evidence suggests it should be extended. And the Fire Safety Bill is designed to emphasise that under the Fire Safety Order, building owners and managers of all multi-occupied residential buildings must assess the risks from external walls (including cladding and balconies) and front entrance doors. More on these below.
Health and Safety / Estates and Facilities Management Fire Safety Bill
In March 2020, the Home Office introduced a new bill to improve fire safety in buildings in England and Wales.
The proposed Fire Safety Bill will amend the Fire Safety Order 2005 to clarify that the responsible person or duty-holder for multi-occupied, residential buildings must manage and reduce the risk of fire for:
- the structure and external walls of the building, including cladding, balconies and windows
- entrance doors to individual flats that open into common parts.According to the government, this clarification aims to empower fire and rescue services to take enforcement action and hold building owners to account if they are not compliant.
Following the Grenfell Fire in 2017 the Government have taken several steps around fire safety, and this Bill forms part of that response. It is part of a series of changes by the Government to both fire safety and building safety more generally, with further primary and secondary legislation to follow.
The Regulatory Reform (Fire Safety) Order 2005 consolidated several different pieces of fire legislation. It applies to all non-domestic premises, including communal areas of residential buildings with multiple homes. The Order designates those in control of premises as the responsible person for fire safety and they have a duty to undertake assessments and manage risks. The Order is enforced by Fire and Rescue Authorities.
The Bill clarifies that:
- for any building containing two or more sets of domestic premises the Order applies to the building’s structure and external walls and any common parts, including the front doors of residential parts
- external walls in the order include “doors or windows in those walls” and “anything attached to the exterior of those walls (including balconies).”These amendments are expected to provide for increased enforcement action in these areas, particularly where remediation of aluminium composite material (ACM) cladding is not taking place.The Bill also provides ministers with a regulation making power to amend the type of buildings the order applies to in the future. This Bill extends and applies to England and Wales.
Second Reading of the Bill took place on 29 April 2020. Committee Stage took place on 25 June where the Bill passed without amendment. Three new clauses were negatived on division. Remaining stages of the Bill were scheduled for 7 September 2020. The Fire Safety Bill cleared the Commons and will now be debated in the House of Lords.Provisions of the BillPremises to which the Fire Safety Order appliesClause 1(b) amends article 6 of the Fire Safety Order 2005.A new paragraph makes it clear that the Fire Safety Order applies, when the premise is a building containing two or more sets of domestic premises, to:
- the building’s structure and external walls and any common parts. This removes any ambiguity in the current Fire Safety Order around whether such parts are covered
- doors between domestic premises and common parts. This will include flat entrance doors and other doors adjacent to common parts that provide – or line – escape routes from multi-occupiedresidential buildings.The Clause also provides further clarity that external walls includes doors or windows in those walls and anything attached to the exterior of those walls and that these will be within scope of the Fire Safety Order. This category will include cladding, insulation, fixings and balconies.
Power to change premises to which the Fire Safety Order applies
Clause 2(1) provides a delegated power to ensure that the relevant authority can amend the Fire Safety Order, by regulations, to change or clarify the types of premises falling within its scope and allow for amendments consequential to those changes or clarification to be made. This will ensure, for example, that any new types of premises can be brought into the scope of the Fire Safety Order relatively quickly, thereby improving fire safety.
Extent, commencement and short title
Clause 3 provides that the Bill will extend and apply in England and Wales.
Fire Safety Consultation
On 20 July 2020, the Government’s consultation on changes to the Fire Safety Order was launched. The consultation closed on 12 October 2020. It has set out to establish views on proposals to strengthen the Fire Safety Order, implement Grenfell Tower Inquiry recommendations and strengthen the regulatory framework for how building control bodies consult with Fire and Rescue Authorities.
The fire safety consultation contained proposals to:
- strengthen the Regulatory Reform (Fire Safety) Order 2005 and improve compliance
- implement the Grenfell Tower Inquiry Phase 1 Report recommendations that require a change in law to place new requirements on building owners or managers of multi-occupied residential buildings, mostly high-rise buildings
- strengthen the regulatory framework for how building control bodies consult with Fire and Rescue Authorities and the handover of fire safety information.The proposals in the consultation are likely to be implemented in several ways: through the Building Safety Bill, amendments to the Fire Safety Order, amendments to Building Regulations and through updated guidance.The Building Safety BillOn 20 July, the Government published the draft Building Safety Bill, which is intended to put in place new and enhanced regulatory regimes for building safety and construction products.The Bill sets out to ensure that buildings are safe for their occupants and to avoid a repeat of a tragedy such as that seen at Grenfell Tower. Critical to the Bill is the introduction of the new, statutory role of Building
Safety Manager; dedicated to the day-to-day management of fire and structural safety in a building
and to ensure residents have a clear point of contact for any issues relating to safety.
Fire Safety Consultation
The Building Safety Manager (BSM) role will ensure that greater building safety standards can be delivered for residents in buildings in scope and will help to bring much needed clarity over who is responsible for building safety – and the competencies required to ensure that safety.
Facilities management professionals are well placed to take on this role.
The draft Bill will ensure that there will always be someone responsible for keeping residents safe in high rise buildings – those 18 metres and above. They will also have to listen and respond to residents’ concerns and ensure their voices are heard. They will be called the ‘Accountable Person’.
Residents and leaseholders will have access to vital safety information about their building and new complaints handling requirements will be introduced to make sure effective action is taken where concerns are raised.
Regulator for Building Safety
To oversee all this and make sure that Accountable Persons are carrying out their duties properly, there will also be a new national regulator for building safety, within the HSE. It will ensure that high rise buildings and those in them are being kept safe and will have new powers to raise and enforce higher standards of safety and performance across all buildings. The regulator will appoint a panel of residents who will have a voice in the development of its work.
The regulator will have three main functions:
- to oversee the safety and standard of all buildings
- directly assure the safety of higher-risk buildings
- improve the competence of people responsible for managing and overseeing building work.The draft Bill will also give the government new powers to better regulate construction materials and products and ensure they are safe to use.
Overview of the Act
The Act has 5 Parts, and contains provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings. Part 2 contains provision about the building safety regulator and its functions in relation to buildings in England.
It also contains definitions of “building safety risk” and “higher-risk building”. Part 3 amends the Building Act 1984 as it applies in relation to England.
Amendments made by Part 3:
- a) provide that the regulator is the building control authority in relation to higher-risk buildings, and
- b) require the regulator to establish and maintain registers of building control approvers and buildinginspectors.
Part 4 is about occupied higher-risk buildings and imposes duties on accountable persons and building safety managers. Part 5 contains supplementary and general provisions, including:
- a) provision requiring a new homes ombudsman scheme to be established
- b) powers to make provision about construction products
- c) provision about the regulation of architects.
Grenfell Tower Inquiry
The Grenfell Tower Inquiry was created to examine the circumstances leading up to and surrounding the fire at Grenfell Tower on the night of 14 June 2017.
The fire appeared to spread rapidly up the building; the current Public Inquiry reported that “there was compelling evidence that the external walls of the building failed to comply with Requirement B4(1) of Schedule 1 to the Building Regulations 2010, in that they did not adequately resist the spread of fire having regard to the height, use and position of the building”.
The Phase 2 hearings are now underway.
Inquiry Hearings were suspended on 16 March due to the COVID-19 Pandemic. The Inquiry resumed hearing oral evidence on 6 July 2020 on a limited attendance basis. The last update from the Inquiry was published on 18 August. Module 1 hearings resumed on 7 September and continue to be held on a limited attendance basis.
Changes to guidelines
On 9 September, the government announced new measures with the aim of suppressing the virus and keeping the number of infections down. So, from Monday 14 September, the ‘rule of six’ meant not meeting with people from other households socially in groups of more than 6. This applies indoors and outdoors, including in private homes. The rule applies both indoors and outdoors in England and Scotland, and indoors only in Wales.
Restrictions in England affect everyone, but do not include children under 11 in Wales or under 12 in Scotland. There are a limited number of exemptions, including:
- COVID-19 Secure venues, such as places of worship, restaurants and hospitality venues, can still host larger numbers in total but groups of up to 6 must not mix or form larger groups
- this rule will not apply where everyone lives together or is in the same support bubble, or to continue existing arrangements where children do not live in the same household as both their parents
- education and work settings are unaffected
- organised team sports will still be able to proceed, as will weddings and funerals up to 30.
The new rules are enforceable in law. In light of this, workplace guidance was also updated (see below). Announcements on 22 SeptemberFollowing stark warnings from the scientists, the Prime Minister announced a series of new restrictions to try to stop the spread of coronavirus in England. Boris Johnson said the new measures would probably stay in place for the next six months.The latest changes in England:
- pubs, bars and restaurants to close at 22:00 BST; they will also be restricted to table service only (licensed premises) in addition to the legal requirement to take customers’ contact details
- people should work from home wherever possible
- face masks compulsory for bar staff and non-seated customers, shop workers, waiters and taxi drivers
- limit on guests at weddings reduced from 30 to 15
- plans to allow fans to return to sporting events paused
- business conferences and events postponed until further notice
Close Contact Services
- ◇ working from home (section 3)
- ◇ supporting staff to self-isolate (section 3.2)
- ◇ mandatory PPE for staff (section 6.1)Providers of Grassroots Sport and Gym/leisure Facilities Restaurants, Pubs, Bars and Takeaway Services
- ◇ legal requirements for businesses (section 1)
- ◇ mandatory table service at licenced venues (section2.2)
- ◇ working from home (section 3)
- ◇ supporting staff to self-isolate (section 3.2)
- ◇ mandatory face coverings for staff and customers (section 6.1)
• Shops and Branches
◇ working from home (section 3)
◇ supporting staff to self-isolate (section 3.2) ◇ mandatory face coverings for staff and
customers (section 6.1)
• The Visitor Economy
• Construction and Other Outdoor Work
- ◇ working from home (section 2)
- ◇ supporting staff to self-isolate (section 2.2) • Factories, Plants and Warehouses
◇ working from home (section 2) ◇
supporting staff to self-isolate (section 2.2)
- “Rule of six” now applies to indoor team sports
- fines for not wearing masks or following rules increased to £200 for first offence.Businesses and organisations will face stricter rules to make their premises COVID-19 Secure. Shops, restaurants and other hospitality businesses and close contact services will be subject to the COVID-19 Secure requirements in law and fines of up to £10,000 for repeated breaches of the requirements around maximum group sizes, track and trace and mask-wearing.Businesses will need to display the official NHS QR code posters so that customers can ‘check-in’ at different premises using this option as an alternative to providing their contact details once the app is rolled out nationally (from 24 September).In Scotland, measures announced also include that all pubs and restaurants close at 22:00, and everyone who can work from home should work from home. If necessary, a legal duty will be put on businesses to allow home working where possible.Working Safely During Coronavirus (COVID-19) – guidance updatedFollowing the announcements made on 9 September, the government updated the workplace guidance to include priority actions to take to protect staff, clients, visitors and customers (see below for details). In addition, the following sections have also been updated to reflect the announcements made on 22 September:
- Heritage Locations
- Hotels and Other Guest Accommodation
- Labs and Research Facilities
- ◇ working from home (section 2)
- ◇ supporting staff to self-isolate (section 2.2)
- Offices and Contact Centres
- ◇ working from home (section 2)
- ◇ supporting staff to self-isolate (section 2.2)Priority actions
Other People’s Homes
- ◇ working from home (section 2)
- ◇ supporting staff to self-isolate (section2.2)Vehicles
- ◇ working from home (section 2)
- ◇ supporting staff to self-isolate (section2.2).
Each of the above guidance documents have had seven steps added to protect employers, staff and customers during Coronavirus:
- 1) Complete a COVID-19 risk assessment. Share it with all your staff. Find out how to do a risk assessment.
- 2) Clean more often. Increase how often you clean surfaces, especially those that are being touched a lot. Ask your staff and your customers to use hand sanitiser and wash their hands frequently.
- 3) Ask your customers to wear face coverings in any indoor space or where required to do so by law. That is especially important if your customers are likely to be around people they do not normally meet. Some exemptions apply. Check when to wear one, exemptions, and how to make your own.
- 4) Make sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that your customers can follow.
- 5) Always increase ventilation by keeping doors and windows open where possible and running ventilation systems.
- 6) Take part in NHS Test and Trace by keeping a record of all your customers for 21 days. From 18 September, this will be enforced in law. Some exemptions apply. Check ‘Maintaining records of staff, customers and visitors to support NHS Test and Trace’ for details.
- 7) Turn people with Coronavirus symptoms away. If a staff member (or someone in their household) or
- 8) a customer has a persistent cough, a high temperature or has lost their sense of taste or smell,they should be isolating.
Further additional advice has been added that is specific to each sector. The guidance ‘5 steps to working safely’ has been withdrawn.
Recent COVID-19 legislation
The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020
These Regulations make provision for the tightening restrictions on gatherings which have been taken to reduce the public health risks posed by the spread of severe acute respiratory syndrome Coronavirus 2 (SARS-CoV-2) in England which causes the disease COVID-19.
The instrument amends the Original Regulations for the fourth time. The provisions detailed in this latest amendment came into force on 14 September 2020. Regulation 5 of the Original Regulations is amended to provide for:
- the prohibition of a gathering of more than six people, one household or two households where they are linked households unless a valid exemption applies
- the exemptions to the gatherings limit are (Regulation 5(3)):
- for an elite sportsperson, their coach (or where the elite sportsperson is a child, their parent) and thegathering is necessary for a competition or training
- where the gathering is reasonably necessary for work purposes; for the provision of voluntary or charitable services; for education or training
- to provide childcare or to supervise activities for children; to provide emergency assistance; to enable the avoidance of injury or escape from the risk of harm; to provide care to or assistance to a vulnerable person
- to facilitate access to and contact between parents and children where they do not live in the same household
- to fulfil a legal obligation
- where the gathering is a support group
- for gatherings of up to 30 persons for marriage or civil partnership
- for gatherings for a significant event.The transmission rate has increased over recent weeks, amongst young people, and compliance with social distance guidance has decreased. As a result, it has been considered necessary to introduce new measures to limit the spread of Coronavirus.
The Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020
These Regulations require designated venues to collect certain contact details mainly from customer, visitors and staff (as set out in the regulations), store this information for 21 days, and share it with NHS Test and Trace or local public health officials, if requested. This will enable NHS Test and Trace and local public health officials to contact people who may have been exposed to COVID-19 and give them appropriate public health advice to help stop the further spread of the virus.
The instrument will facilitate this by, in summary, requiring specified persons to display a QR code, (which is a code that can be scanned using the NHS Covid-19 app, and which will log the person’s entry to the premises on their phone). The specified person must also request that those seeking to access their services, (principally, customers and visitors (with some exemptions)), scan the QR code with the app on entry, or provide certain contact details. There are also requirements regarding collecting certain contact details of those providing services such as members of staff. These details are to be kept for a period of 21 days and provided to the NHS Test and Trace on request, for the purposes of contact tracing.
The requirements cover the following sectors: hospitality; leisure and tourism; close contact services; and local authority venues; a full breakdown of settings can be found in the Schedule. The Regulations came into force on 18 September 2020 and applies to England.