AMIDST INCREASING reporting of serious fires caused by lithium-ion batteries used in e-bikes and e-scooters, the government has published statutory guidance setting out the safety mechanisms that lithium-ion batteries for e-bikes must contain to address the risk of ‘thermal runaway’. Thermal runaway is a dangerous chain reaction that causes fires. At the same time the regulator, the Office of Product Safety and Standards (OPSS) reminded producers and distributors of lithium-ion batteries that they must take these guidelines into account when assessing whether their battery meets legal safety requirements under the General Product Safety Regulations 2005 (GPSR).

Amongst other things, the guidance provides that lithium-ion batteries intended for use with e-bikes or e-bike conversion kits must include safety mechanism(s) to prevent thermal runaway both during normal operation and conditions of reasonably foreseeable misuse. The design and construction of a lithium-ion battery must “sufficiently resist” damage from external sources, including from temperature, liquids, impact and vibration from normal wear and tear.

In addition, information to enable businesses and users to assess the intended use compatibility of the battery, including on sourcing compatible chargers, must be provided with battery packs, along with information on safe charging.

Guidance is also provided on demonstrating protections from thermal runaway for both producers and distributors.

The regulator has also confirmed that addressing the risks related to fires involving e-bikes and e-scooters in the UK remains a priority for its regulatory activity.  The confirmation accompanied publication of new independent research into the safety of e-bike and e-scooter lithium-ion batteries, chargers and e-bike conversion kits. Commissioned by the OPSS to give a better understanding of the risks associated with the use (and foreseeable abuse of) e-bikes and e-scooters, the research is said to have given new insights into a number of matters. These include how product safety standards may have fallen behind technological advances.  

The regulator said that it will carefully consider the evidence produced by the research to inform “policy development and effective regulation”. The OPSS has already been active in regulatory interventions in this area. This regulatory activity includes market surveillance and data gathering as well as campaigns to raise awareness of risk. 

Fires said to be caused by lithium-ion batteries are increasingly common; they have been described by London Fire Brigade as the fastest growing fire risk.  According to the OPSS, fire and explosion risk from lithium-ion batteries used by e-bikes and e-scooters has been increasing, along with the growth of the market. In 2023, there were almost 200 fires reported involving these products in the UK, causing 10 fatalities.

The risks inherent in battery production, storage, use and disposal are not new – battery power has been around for a long time - but battery usage is changing rapidly, bringing those risks into sharp focus leading to increasing calls for regulation/intervention. However, there is already a substantial body of legislation and guidance which is equally relevant to lithium-ion battery risk.  

As always, care should be taken to ensure any new regulation is properly thought through to avoid unforeseen consequences, confusion and duplication, as well as any unnecessary regulatory burden. Additional regulation does not always equate with increased safety. Consideration should be given to whether additional guidance/education might address a risk in relation to which existing regulation may be relevant (such as the statutory guidance issued by the government). Crucially, stakeholders must be involved in the evolution of new regulation.

The OPSS said that it is continually assessing the most effective regulatory interventions to protect consumers and target and remove dangerous products. Among the possible options mentioned by it is improving the regulatory framework through the Product Regulation and Metrology Bill (PRM Bill). The PRM Bill is currently making its way through parliament and aims to modernise and streamline product safety regulations across the UK.

This option, according to the OPSS, will help ensure the UK’s product safety framework can keep up with technological advancements, including on e-bikes and lithium-ion batteries, “if regulatory change is needed”.

In addition to this, Private Members Bill, the Lithium-ion Battery Safety Bill, remains before parliament. Originating in the House of Lords, the Bill had its second reading in September but details of dates for further progress are awaited. The OPSS’s reference to the government’s PRM Bill suggests that it is the more likely route to regulation in this area – if there is to be regulatory change.

The measured approach to increasing regulation being adopted by the OPSS will be welcomed by stakeholders keen to avoid yet more regulation. Of course, in some cases new regulation is required. Whilst proposed legislation currently before parliament may provide a mechanism to do this, it is by no means certain, at this stage at least, that it will be deployed in this area.  

Other initiatives set out by the OPSS include developing a new ‘publicly available specification’ (PAS) to cover the safety of lithium-ion batteries in collaboration with the British Standards Institution (BSI) and other stakeholders.  

Whatever the outcome, collaboration across government and stakeholder engagement will be key.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com

BOTH THE UK government and the UK’s workplace health and safety regulator have repeatedly confirmed their commitment to drive improvements in workplace mental health. Employers must play their part in this and take steps to prevent work-related stress, depression and anxiety, or face the growing threat of enforcement action.

The latest workplace health and safety statistics published by the Health and Safety Executive (HSE) show that 1.7 million workers were suffering from work-related ill health in 2023-24. Around 46%, or 0.8 million, of these workers suffered from work-related stress, depression or anxiety. The rate is higher than the 2018-19 pre-coronavirus level. 

Shortly before publication of its latest statistics the HSE issued an eBulletin reminding employers of the legal duty to prevent work-related stress and support good mental health at work. It highlighted that risk assessments must consider workplace stress, depression and anxiety, commenting that “many people still don’t realise that”.

Improving workplace mental health as well as safety is a key priority for the HSE and the regulator has committed to use its “collective resource to focus on this problem” and “deliver interventions that make a real difference”.

As ever, risk assessment is key. As the HSE has said, “prevention is better than cure, and understanding the risks is the first step to preventing them”. This should include psychosocial risk factors which can adversely affect mental health outcomes. For example, in the construction industry, identified psychosocial risks include the often high risk nature of construction work, the prevalence of temporary workplaces and exposure to extreme weather conditions. In addition, the high physical and psychological demands associated with many construction industry tasks, workload and time pressures, lack of job autonomy and control, lack of supervision, support and recognition and lack of participatory decision-making may also contribute to mental ill health amongst construction workers. 

Workplace culture may also be a contributor to increased risk, for example where mental health is downplayed or issues stigmatised. 

But risk assessment is not the end of things; steps must then be taken to eradicate or at least mitigate identified risks. 

Many companies are already taking steps to address and improve their workers’ mental health. They are aware of the issues and the need to drive improvements, harnessing the good and mitigating the risks of the bad. These businesses understand that the success of their business depends on a reliable, skilled workforce, able to perform the tasks expected of them properly. The steps companies can take include reviewing workplace practices to reduce as far as possible risk factors, taking account of any known vulnerabilities, encouraging discussions on worker mental health through mental health and intervention training, ensuring accessibility of occupational health services and mental health first aiders, and provision of toolkits supporting workers to identify and address psychosocial risks.

However, more needs to be done. Improving worker mental health is not only a regulatory priority but is also increasingly a political priority too. In its recent Get Britain Working White Paper, the government stated that “®reversing the increase in economic inactivity caused by ill health is a national priority”. Mental health conditions are amongst the most prevalent conditions in people who are economically inactive. 

Help is at hand for employers. The Working Minds Campaign contains some invaluable guidance. Charity, Mates in Mind also has sector specific advice designed to empower both employers and workers to understand and address mental health issues better. Initially, aimed at the construction sector, Mates in Mind now offers advice and guidance for a range of industries. All of this adds to a growing body of guidelines in this area, including International Standard ISO45003, which sets out internationally agreed guidelines and practical guidance for managing psychosocial risk within an occupational health and safety management system, to prevent work-related injury and ill health and promote wellbeing at work, and World Health Organisation guidelines.

All workers should go home healthy. As the HSE has said in the past, by shining a light on issues such as stress, depression and anxiety, we can help to drive improvements.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com

EMPLOYERS WILL be required to take steps to improve protections against violence and harassment, especially for women and girls, as part of their obligations to ensure workplace health, safety and wellbeing if a Private Member’s Bill currently before the House of Commons becomes law.

The Health and Safety at Work etc Act 1974 (Amendment) Bill (the Bill), introduced by Plaid Cymru MP Liz Saville Roberts, aims to amend the Health and Safety at Work etc Act 1974 (HSWA) to include more specific measures against violence and harassment in the workplace.

The Bill seeks to place a legal requirement on employers to take proactive steps to prevent violence and harassment. This includes implementing comprehensive policies and training programmes designed to create a safer and more inclusive work environment. The proposed amendments also mandate the Health and Safety Executive (HSE) to develop and publish a detailed Health and Safety Framework specifically addressing workplace violence and harassment, including gender based violence.

The Bill places emphasis on preventative measures. For example, employers would be required to conduct regular risk assessment and establish clear reporting mechanisms for incidents of violence and harassment. This proactive approach is intended to not only address incidents when they occur but also to create a workplace culture that discourages such behaviour from happening in the first place.

The Bill has attracted significant attention and support from various advocacy groups and organisations dedicated to workplace safety and gender equality, but without government support is unlikely to progress further. However, as with many such bills, the aim is not necessarily to make new law but to raise awareness of issues. In this case, the fact that the Bill is unlikely to become law does not detract from the fact that it reveals the increasing support for better protections from such incidents. 

There remains an argument that the HSWA is not the right platform to tackle such specific matters. One of the reasons the HSWA remains relevant 50 years after it came into force is its focus on the general responsibilities imposed on an employer to ensure the health, safety and wellbeing of its workers and others affected by their activities, insofar as reasonably practicable. With its roots in the belief that as the person most likely to create workplace health, safety or wellbeing risk, the employer is best placed to address it, the HSWA’s focus on these underlying obligations has meant that it remains flexible and able to provide the underpinning of the radical changes already seen in the last 50 years, and which are likely to be met in the future. 

Specific issues requiring additional parliamentary intervention have been provided for in other legislation or regulations. Some additional obligations are already in place. From 26 October 2024, businesses and employers in the UK are required to take reasonable steps to prevent their employees from experiencing workplace sexual harassment, including worker-to-worker and by third parties like customers and clients. This new mandatory duty has been imposed on employers of all sizes and across all sectors by the Worker Protection (Amendment of Equality Act 2010) Act 2023. 

This new duty requires employers to anticipate risk and take proactive steps to prevent harassment from happening. This legislation is intended to sit alongside all the things that employers are already doing to tackle workplace sexual harassment, but to change that mindset so that it is really about prevention rather than punishment. The use of risk assessments, similar to those used in workplace health and safety, will be key.

Failing to comply with the new duty will lead to enforcement action by the EHRC as well as financial penalties, as employment tribunals will be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent harassment has not been complied with.

The change in legislation also gives the EHRC power to take enforcement action where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment. Enforcement by the EHRC can be taken even before an incident of sexual harassment arises. 

The new duty is intended to drive organisational cultural change and place greater accountability on employers. Amongst other things, senior leadership buy in will be crucial, as will proper and regularly reviewed assessment of risk, with implementation of suitable and sufficient mitigations, as well effective training so that individuals understand the purpose and intended impact of the new duty.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com

THE UK’s Terrorism (Protection of Premises) Bill (the Bill), published in September, responds to a commitment made in the aftermath of the Manchester Arena bombing.  Known as “Martyn’s Law” after victim, Martyn Hett, the Bill places a statutory duty on those responsible for qualifying premises and events to implement reasonably practicable public protection procedures and/or measures, depending on the capacity of the premises.  Differing requirements are imposed depending on whether the premises fall within the definition of standard tier or are enhanced tier premises or “qualifying events”. 

The new duty will apply to “qualifying premises” and “qualifying events”.  Qualifying premises are essentially buildings with a capacity of 200 or more to which the public have access and are primarily used for specified purposes. Those uses are widely defined by reference to a schedule to the Bill and include entertainment venues, nightclubs, leisure, retail, food and drink venues, hotels, museums, sports grounds, public areas of government buildings, temporary events, places of worship, health, and education premises. Those responsible for qualifying premises and qualifying events, essentially those with control of such premises, must notify the regulator, the Security Industry Authority, of their responsibility.

EMPLOYERS IN the UK should pay close attention to the risk assessment approach and business-specific preventative steps proposed by the Equality and Human Rights Commission (EHRC), which is in the process of changing its guidance on preventing workplace sexual harassment.

The proposed changes have been set out in a consultation by the EHRC, in light of the new duties to be imposed on British employers to prevent workplace sexual harassment. The new rules have been introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023, which comes into force on 26 October 2024.  The changes in equality law place a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. 

In January 2020, the EHRC issued technical guidance on sexual harassment and harassment at work to help employers, workers and their representatives understand how the Equality Act 2010 prohibits harassment at work. It also provides advice on the types of actions employers can take to prevent and respond to workplace harassment.  

The consultation seeks views on updates to that guidance, including information on the new preventative duty so that employers understand their new obligations under equality law.

The key focus is on prevention, anticipating scenarios by taking a risk assessment approach. The proposed changes contain examples of this, and of potential preventative steps arising from the risk assessment. These will be business and potentially area specific. A large employer may have to take a different approach for customer-facing areas of its business for example.

According to the proposed changes to the guidance, what is reasonable will vary from employer to employer and will depend on factors such as the employer’s size, the sector in which it operates, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.

The consequences for employers that breach the preventative duty are also made clear in the draft. The EHRC will have the power to take enforcement action if it suspects the preventative duty has not been complied with, and action can be taken even before any incident arises.  Another new consequence is the potential to uplift compensation. An employment tribunal will be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent sexual harassment is not been complied with.

Although not dealt with in the guidance, the potential reputational damage for employers found to have a culture where harassment exists or is not addressed must not be forgotten, or underestimated.

Another important update proposed by the EHRC is to expressly refer to third party harassment in its guidance. The proposed changes make it clear that sexual harassment of a worker can be committed by a third party and that the preventative duty is to include prevention of sexual harassment by third parties.  However, questions remain relating to uplift of awards and enforcement powers over harassment committed by a third party - as the law currently stands it is difficult to see how any claim in relation to failure to prevent third party harassment could attract any uplift to a tribunal award.  Clarification may be provided on the scope and intention around this following consultation.

The final form of the guidance and the new duty may still be subject to change by the newly elected Labour government. The Labour party has previously indicate that they would expand the duty to taking all reasonable steps, rather than just reasonable steps. 

The EHRC’s consultation closed on 6 August 2024.

Helen Corden is UK head of employment and reward at Pinsent Masons. For more information, visit www.pinsentmasons.com

THE UK government has sought to address at least some of the concerns about its proposed Terrorism (Protection of Premises) Bill (“the draft Bill”), in a consultation published in February 2024. The consultation seeks views on proposed changes to the requirements for standard tier premises under the draft Bill. While the proposed changes confirm a commitment to proportionality, questions remain, including on what businesses must do to protect against acts of terrorism. 

Published in May 2023, the draft Bill (known as ‘Martyn’s Law’ after Manchester Arena bombing victim Martyn Hett) places a statutory duty on those responsible for qualifying premises and events to take proportionate and reasonable measures to improve public safety and protect against the threat of terrorism. It introduces a new health and safety duty on employers. Differing requirements are imposed depending on whether the premises fall within the definition of standard tier or are enhanced tier premises or “qualifying public events”. However, concerns have been raised about the practicalities and proportionality of the draft Bill’s provisions, in particular in pre-legislative scrutiny by the Home Office Select Committee.

The proposed changes aim to ensure that requirements for standard tier premises are proportionate and clear, whilst also achieving their primary objective - to implement simple procedures which could reduce harm and save lives in the event of an attack. They are intended to focus on outcomes, rather than processes, and the development of tailored and effective plans and procedures.

Standard tier premises are those with a capacity of 100 or more individuals, including employees. In addition, the consultation states that they must be “wholly or mainly” used for one or more specified purposes. Public parks, public gardens and recreation or sports grounds are not within scope of the requirements where no payment is taken for entry, nor any check carried out. 

Places of worship will be standard tier irrespective of capacity – unless they charge a fee for entry. Similarly, it is proposed that premises that are used for childcare or primary, secondary, or further education (but not higher education) will also fall within the standard tier even if their capacity is 800 or over.

Those responsible for standard tier premises, essentially those with control of such premises, must notify the regulator (which is still to be identified) that they are responsible for qualifying premises. They must also ensure that they have put in place procedural measures “that could be expected to reduce, so far as reasonably practicable, the risk of physical harm to individuals at the premises in the event of an attack”.  The consultation states that these will include procedures for evacuation, invacuation, lock down and communication.

In a change from the provisions of the draft Bill as published, the consultation proposes that there will be no requirement to complete a specified form (the ‘Standard Terrorism Evaluation’) for standard tier premises nor to ensure that people working at the premises are given any specific training. The consultation states that guidance will be available on ProtectUK and will support users in further understanding the types of terrorist attacks that could occur at their premises. In addition, the regulator will be expected to support and guide duty holders.

Failure and non-compliance may result in compliance notices being issued and monetary penalties for standard tier premises. However, there will be no criminal offence for failing to comply with a compliance notice in the standard tier.

However, questions remain as to what exactly amounts to ‘measures that could be expected to reduce insofar as reasonably practicable the risk of physical harm to individuals at the premises in the event of an attack’. Risk assessments will be required but who will carry them out? Will specialist assessment of the potential for attack be required, for example? Terrorism is defined by reference to the Terrorism Act 2000.

Careful consideration will also have to be given to the interaction of new obligations imposed by the draft Bill and existing obligations. 

The government makes it clear that the regulator will be expected to issue guidance to assist in compliance. The content of this guidance will be crucial.

The consultation closed on 18 March 2024 and the government is currently analysing responses. To ensure those affected have sufficient time to understand, plan and prepare for the legislation, there will be a period of 18-24 months between Royal Assent and the implementation of it. 

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com

THE UK government has underlined its commitment to increase the role of employers in preventing ill health with the announcement of the appointment of health policy advisor Dame Carol Black to lead its occupational health taskforce. Amongst other things, the taskforce will develop a voluntary occupational health framework for businesses.

The framework, which is being developed in response to a public consultation exercise, will be designed to increase awareness of the benefits of occupational health provision in the workplace. It is expected to set out minimum levels of occupational health needed to stop sickness-related job losses and help businesses better support those returning to work after a period of ill-health. 

Making sure people are fit and healthy to work is a key priority for the government. In its 2021 “Health is everyone’s business” consultation response (Government response: Health is everyone’s business - GOV.UK (www.gov.uk)) the government identified the critical role access to occupational health services can play in helping individuals remain in and return to work, reducing unnecessary sickness absence, increasing productivity and enabling individuals to live better for longer.  However, the government noted a wide variation in access to occupational health services. Only around 45% of British employees currently have access to some form of occupational health provision, according to government statistics. Only 28% of British employers provide some form of occupational health, with large employers nearly three times more likely than small or medium sized businesses to do so.

This was followed last summer by a further consultation, “Occupational Health: Working Better”, in which the government specifically sought views on the introduction of new national workplace health and disability standards including a minimum framework for quality occupational health provision. With the majority of respondents said to have supported developing a national workplace health and disability standard and a minimum framework for quality occupational health provision, the government committed to put that into practice in an effort to provide pragmatic support to businesses. In particular, the government undertook to establish an expert group to support the framework’s development. That has now progressed with the announcement of Dame Carol Black as its lead.

Employers have a duty to ensure the safety and health of their workers, insofar as reasonably practicable. This duty extends beyond physical to mental health and well-being too. Risk assessment is required and suitable mitigations put in place, where risk cannot be avoided altogether.  In accordance with regulation 6 of the Management of Health and Safety at Work Regulations 1999, this includes provision of “such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment.”

Improving workplace mental health is a particular target for both the government and the Health and Safety Executive (HSE), who are likely to want to double down on their efforts in this space following the most recent workplace ill-health statistics. Those statistics demonstrate that poor mental health remains a significant cause of workplace absence. Poor mental health means days and productivity lost and the government is clearly intent on doing all it can to improve outcomes via education and guidance. One way is to ensure provision of access to suitable workplace occupational health services. 

For employers, increased awareness of the risk of workplace stress, depression and anxiety will feed into what is considered reasonable, so any guidance on measures to combat this, together with a reminder of their responsibilities, is to be welcomed. Where appropriate, access to occupational health services may well go a significant way to securing a positive outcome for affected workers.  

The voluntary occupational health framework for businesses is expected to be introduced in mid-2024. 

CONSTRUCTION PRODUCT regulation in the United Kingdom (UK) is based on European Union (EU) regulations which have been supplemented in the UK and retained when the UK left the EU, with some necessary amendments to ensure they remain workable. These regulations define a construction product as "any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for construction works".

Construction products therefore include products such as doors, windows, shutters and gates, membranes, thermal insulation products, chimneys and flues, sanitary appliances, fire alarms, flooring, fire retardant products, space heating appliances, power cables, glass, fixings and many more. 

CE marking is required for goods sold in the European Economic Area (EEA) where there is a relevant harmonised standard – this is an important limitation on the existing regulations. Many construction products are not subject to a designated standard or do not conform to a technical assessment and so fall outwith the existing regulatory framework. The government cannot require the withdrawal of such products from the market, even if they cannot be used safely (like aluminium composite material (ACM) cladding). 

Consequently, as part of its 2018 Building a Safer Future policy, the government stated it would address the regulatory regime for construction products so that all construction products marketed in the UK fall under one regulatory framework, with provisions allowing them to be withdrawn from the market if they present a risk. 

As part of this and its wider post Brexit review of regulation, UK ministers had planned to replace the European CE mark with a ‘UKCA’ mark. Use of the UKCA mark, which would demonstrate that products comply with product safety regulations in Great Britain, was originally due to become mandatory on 1 January 2022. 

However, this deadline has been pushed back several time, most recently in August 2023, when the government announced an “indefinite” delay to the deadline for ending the use of the CE mark on certain products on the market in Great Britain. The list of affected products was expanded following industry feedback in January 2024.

Designed to prevent a so-called “cliff-edge moment” at the end of this year, the Department for Business and Trade (DBT) said the intervention would ensure businesses no longer face uncertainty over the regulations which should help them focus on innovation and give them the flexibility to choose between the CE and UKCA marks. Enabling legislation will be brought forward. 

A new fast track process is also to be introduced allowing manufacturers to use the UKCA marking to demonstrate compliance with either UKCA or recognised EU conformity processes. Where products are covered by multiple regulations, a mixture of both UKCA and CE conformity assessment procedures can be used. New more flexible labelling requirements are also to be introduced including voluntary use of digital labelling.

However, this indefinite delay and associated guidance apply only to products covered by regulations “owned” by the DBT. These include items such as toys, pyrotechnics, measuring instruments, personal protective equipment (PPE), gas appliances, machinery and aerosols. It does not apply to construction products. 

Construction products are regulated separately by the Department for Levelling Up, Housing and Communities. This is not sitting well with industry stakeholders. Many of the arguments put forward to explain the latest indefinite delay – such as tackling red tape, cutting burdens for business, creating certainty for firms, helping to safeguard the competitiveness of manufacturers and aiding the UK as a destination for investment – are equally applicable to construction products. 

According to the government, for construction products, their “intention is to end recognition of the CE mark in Great Britain on 30 June 2025. Current rules, which allow for continued recognition of the CE mark, will remain in place until legislation is laid to end recognition of the CE mark.” 

The industry has repeatedly called for a uniform approach to CE marking across sectors. The government states that it has “listened to industry, and … are taking action to deliver”. Just not yet in relation to construction products it appears.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com

RECENT STATISTICS published by the UK’s Office for Product Safety and Standards (OPSS) have found a high percentage of products tested failed to meet required regulatory standards. Between October 2021 and September 2022, OPSS targeted 2,260 products from various online marketplaces – ‘online marketplace platforms’ (OMPs) – for testing. According to the regulator, 81% of these products, totalling 1,832 items, were found to be non-compliant. 

In its product regulation strategy, published last summer, the OPSS committed to deliver protection through responsive policy and active enforcement. A key part of that commitment was for the OPSS to build its enforcement capability, strengthening checks on the compliance of products sold online, and acting on non-compliance. The growth in online shopping is a long running trend and the results of their OMP product testing programme will confirm to the OPSS that the regulation of products sold online has not kept pace with evolving buying habits.

The testing focused on low-price unbranded or unknown branded products which had poor reviews or had low-quality listing photos. The OPSS said that this product group was more likely to be non-compliant and that these are not representative of all products sold by OMPs. Products were targeted based on the OPSS assessment of risk and with the expectation that enforcement and corrective action would be taken where non-compliance was detected.

The product category with the highest rate of non-compliance was toys. Of the toys tested, 144 were compliant, while 585 were not. At the same time, a total of 431 small mains powered electrical products breached required standards, while just 84 were compliant. Cosmetics were also scrutinised, with 102 found to be compliant – less than half the number that were in breach (224).

However, the OPSS said comparing compliance between categories is not straightforward because each product type has its own rules and standards to follow. In addition, 26 products were excluded from the analysis because they did not fall within the specified product categories.

The potential safety risks when online shopping have been highlighted by the OPSS in the past. In 2021 for example, it issued a product safety message in the run up to Christmas, asking the public to check who they are buying from. The message pointed to the fact that many consumers appeared unaware that online platforms are not always the seller of the products on their websites but often act as an intermediary between an independent company and the buyer. Buying products from businesses based overseas or which fail to provide an address can increase the risks.

Plans for reform of UK product safety rules are already underway with the publication earlier this summer of the OPSS’s proposals that – if implemented – would streamline the existing legislative framework, placing a greater emphasis on compliance with industry-led standards. The proposals would also, according to the OPSS, impose “more flexible obligations on businesses that are proportionate to the product’s risk”.

One option the OPSS is considering is a new categorisation regime whereby products are categorised “by their hazards and consequent risks”. The OPSS said that move could incentivise manufacturers to “design out” hazards. It has suggested that marking and conformity assessment requirements, including any requirement for third-party testing, could be “more explicitly” linked to the risk level of a product and that “lower-risk products” would benefit from “a simpler and fairer system” of regulation with associated lower compliance costs.

Product manufacturers may also be able to “make certain marking and compliance information available digitally” in future under a new voluntary system that would facilitate electronic labelling.

The OPSS proposals also include the imposition of new product safety duties on ‘online marketplaces’, where they import or distribute products, together with duties on online marketplaces to cooperate with enforcement authorities to provide information and take appropriate actions if products are unsafe or non-compliant. 

An additional duty could be that marketplaces must have a compliance function established in the UK which is responsible for ensuring appropriate policies, processes and systems are in place to address the availability of unsafe products.

Enhanced enforcement powers could also be provided for under an updated product safety framework.

With consumers increasingly turning to online markets in a search for cheaper goods, safety concerns are only likely to grow without effective intervention. Regulation is just one aspect of that. The regulator seems keen to bare its teeth but, crucially, will need resourcing to allow it to bite.

The Chartered Institute for Trading Standards has called for more safety checks of products at ports and borders to ensure compliance. The OPSS has already seen its role expanding recently. In 2021, the government announced that it would take on responsibility for the national regulation of construction products. If further responsibilities for increased checking of OMPs is to be included, additional funding will be needed for this, along with enough suitably qualified inspectors to carry out the task.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com

TRANSPORT FOR London (TfL) was fined £10 million for health and safety failures which led to the death of seven people and dozens more injured when a tram, travelling in poor weather and at three times the permitted speed, overturned approaching Sandilands junction in Croydon on 9 November 2016. Of the 69 passengers on the tram, only one escaped injury.

Following an investigation and prosecution by industry regulator, the Office of Rail and Road (ORR), TfL – which owns and maintains London’s transport infrastructure – and the network operator, Tram Operations Limited (TOL), pleaded guilty to a series of offences under the 1974 Health and Safety at Work etc. Act. Alongside TfL’s £10m penalty, TOL was fined £4m.

Failure to heed prior warnings and previous near misses were a significant factor in the case. The ORR’s investigation into the incident revealed that neither company had performed a suitable or sufficient assessment of the risks of a high-speed derailment on the network. The court also heard that an engineer had raised concerns about insufficient lighting in the Sandilands tunnel as far back as 2007.

The judge’s comments about culpability and harm are also particularly noteworthy for stakeholders. Both TfL and TOL sought to argue that their culpability was medium, according to the Sentencing Council’s Definitive Guideline. They also submitted that a report into the disaster by Rail Accident Investigation Board (RAIB) should be an important part of this exercise. 

The judge, Mr Justice Fraser, assessed culpability as high. He said the RAIB report was not intended to assess culpability and was prepared without the benefit of considerable expert evidence which had been led at trial. Mr Justice Fraser said that he was far better placed, having conducted the trial, to assess all the evidence relating to culpability. A reminder that whatever parties may say about culpability – including any agreement reached by them – the matter is one for the court to determine.

Nor did the court agree with the defendants’ assessment of risk of harm. Whilst the prosecution said that this was a ‘high’ likelihood case, the defendants’ position was that it was a ‘low’ likelihood case. Mr Justice Fraser sided with the prosecution, stating that it was “undoubtedly an accident waiting to happen, quite literally”.

He also rejected arguments that the fact that many years had passed without such a disaster pointed to a lower risk of harm, considering that simply down to the fact the combination of circumstances had not occurred prior to November 2016.

Of particular note is the court’s rejection of comparisons with similar cases in this assessment exercise as indicative of risk of harm. It emphasised that the assessment of risk of harm is a fact-specific evaluation for the court.

The court also found that TOL did not fully appreciate the extent of its obligations. TfL was responsible for the infrastructure of the tram network, and TOL responsible for running the tram company. According to its operating agreement with TfL, TOL was required to report to TfL on safety.

The court noted that TOL considered that it was not its responsibility to report on risks and safety improvements relating to the infrastructure. Not only did the court consider this contrary to the operating agreement, but also an “unacceptable attitude to life and limb”.

Parties must ensure they fully understand and are able to implement safety-related contractual obligations. In this case, the lack of understanding meant that an opportunity to flag required safety improvements was missed, with catastrophic consequences.

Mr Justice Fraser also criticised TOL’s incident reporting system, under which drivers were expected to self-report issues they encountered. The judge described this system as “not a safe one”. The court found that many drivers were reluctant to self-report incidents due to the potential adverse consequences – including disciplinary proceedings – that sometimes followed if they did. 

A culture of compliance must be front and centre in organisations if they are to meet their health and safety obligations. This includes encouraging a ‘speak up’ environment where employees and others feel able to report incidents, without fear of reprisals. In addition, companies must ensure that near miss and incident recording systems incorporate a mechanism for action to be taken when serious near misses arise, or when prior incidents indicate a serious safety problem.

The court in this case also cited Health and Safety Executive guidance which makes clear that human factors must be considered “as a distinct element” to be “recognised, assessed and managed effectively” to control risks.

Ultimately, failure to act on previous incident information is going to become harder to defend as the world moves into a data-driven age in which companies are increasingly expected to have mechanisms in place to harness and utilise safety data for employee and public safety.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com