BIFM Corporate Members Event June 2015 Lee Grant Head of Service & Community Development, BIFM #BIFMCME

Agenda Corporate Members Event: Legislation Impacting Facilities Management Barbour - Teresa Higgins, Sales Director, Barbour EHS >CDM - Jason Bleasdale, Partner in the Casualty and Healthcare Group, Clyde & Co. & Rhian Gilligan, Legal Director, Safety Health and Environment Regulatory, Clyde & Co. >CDM case study - Ophelia Bellio, Facilities Manager – Facilities & Property, Ricoh UK Ltd >ESOS - Jason Bleasdale, Partner in the Casualty and Healthcare Group, Clyde & Co. >COMAH - Rhian Gilligan, Legal Director, Safety Health and Environment Regulatory, Clyde & Co.

Teresa Higgins Sales Director, Barbour EHS #BIFMCME

Jason Bleasdale & Rhian Gilligan Clyde & Co. #BIFMCME

Please note: This is a PowerPoint 2003 file. Do not work on this file in PowerPoint 2007 or It will distort the template settings in this file (EVEN IN THE COMPATIBILITY MODE) CDM Regulations 2015 Jason Bleasdale, Partner Rhian Gilligan, Legal Director Clyde & Co Claims LLP

CDM REGULATIONS 2015 – MORE RELEVANT AND FOCUSED OR JUST MORE RED TAPE?

Timeline to 2015  1992 – EU Directive 92/57/EEC  1994 – CONDAM Regulations  2000/01 – 105 deaths  2007 – new CDM Regulations  2010/12 – evaluation of CDM “Common Sense, Common Safety” – Lord Young, “Good Health and Safety, Good for Everyone” – Govt “Reclaiming Health and Safety for All” – Prof. Lofstedt, 2011  2014 – consultation on replacing CDM 2007  2015 – new Regulations enacted

So why change CDM 2007?  Legal – non-compliance with EU Directive 92/57/EEC(!) - EU Directive covers domestic clients; CDM 2007 did not -EU Directive requires coordination, where more than one contractor; CDM 2007 based this requirement on project duration  Practical – not well suited to SMEs and smaller construction sites -too complex and bureaucratic (still …)? leading to -Mis-application or over-interpretation (adding further bureaucracy) -“Competence” not well understood (especially in the corporate sense) -“Core competence” assessment too burdensome o Driven by process, not output o Often bought in from 3 rd party providers -Coordination role not properly embedded in preconstruction phase

Objectives and solutions From a legal perspective, the intention is to seek compliance with EU Directive 92/57/EEC (finally …) From a practical perspective, the intention is to make a simpler, more streamlined and more proportionate system Fewer HSE notifications Coordination by principal designer Standalone “competence” to be replaced by project specific: -Skills -Knowledge -Experience -Organisational capability

CDM Application CDM 2015 applies to all construction work in Great Britain There is almost no exclusion for domestic or small projects However, there is a distinction made between those projects which are notifiable to the HSE and those with one contractor or multiple contractors A project is notifiable where: -Construction work is scheduled to last longer than 30 working days and have more than 20 workers on site working simultaneously at any point, or -Construction work is scheduled to exceed 500 person days CDM 2015 applies throughout a project: the client has duties before, during and after construction

CDM 2015: the end of CDMC  Client (Regs 4-7)  Principal designer (Regs 8-12)  Principal contractor (Regs )  Designer (Regs 8-10)  Contractor (Regs )

Competence assessment Competence was poorly understood Often the foundation of prosecutions following accidents with Defendants unsure as to how they would prove competence Now a more prescriptive approach Aim is to make competence assessment easier Elements of “competence” identified: -Skills -Knowledge -Experience -Organisational capability Person responsible for appointing a designer or contractor must take reasonable steps

Competence assessment (contd.) Organisation capability is the policies and systems that an organisation has in place to set acceptable health and safety standards and the resources and people to ensure the standards are delivered ‘Sensible enquiries’ (para 60, HSE guidance) should be made – PAS91 sets out standardised pre-qualification questions which is one way of assessing organisational capability ‘Due weight’ should be given to membership of professional institutional body (para 62, HSE guidance)

Transitional provisions  Until 6 April 2015, CDM 2007 remains in force, so all projects will need to apply to CDM Co-ordinator  After 6 April 2015, CDM 2015 came into force and CDM 2007 was withdrawn  Between 6 April 2015 and 6 October 2015, transitional arrangements apply  Two scenarios: -Projects with no existing CDMC or PC -Projects with an existing CDMC

It starts now – transitional provisions Projects with a CDM Co-ordinator -CDM Co-ordinator may remain in role until 6 October During that period, he must discharge the obligations set out in para 5 of Schedule 4 -If the project is incomplete as at 6 October either: o A principal designer should be appointed; or o A principal contractor may complete the H&S file

It starts now – transitional provisions Projects under construction with no CDM Co-ordinator -A principal designer must be appointed as soon as possible -A principal contractor must also be appointed -If principal contractor is appointed but no principal designer, the principal contractor must prepare/complete the H&S file

Enforcement issues Clarity and understanding regarding roles and responsibilities by all parties involved Will take time for inspectors to implement CDM 2015 in practice Watch out for FFI invoices and Notifications of Contravention in the meantime – is the time spent reasonable? Are the material breaches correct? Check carefully any Prohibition or Improvement Notices – are they correct? Competence still likely to be a battleground but CDM 2015 provides guidelines to help the industry Likely that HSE will still default to general duties with prosecutions citing CDM breaches as particulars

What happens when it goes wrong? Statutory Notices Criminal investigation and prosecution Companies and individuals Unlimited fine and/or 2 years’ custody Director disqualification up to 15 years

Sentencing Health and Safety Offences Act Removal of cap in the Magistrates’ Court (post 12 March 2015) New sentencing guidance in 2016 Increase in fines inevitable More trials? More Newton hearings?

CDM conclusion Clearer and simpler? More streamlined and less bureaucratic? Cheaper to implement? Likely to improve safety on smaller sites?

Points of contact Rhian Gilligan, Legal Director Safety, Health, and Environment Regulatory Department Direct Tel Mobile Jason Bleasdale, Partner Casualty and Healthcare Department Direct Tel Mobile

Ophelia Bellio Facilities Manager – Facilities & Property, Ricoh UK Ltd #BIFMCME

Jason Bleasdale Partner in the Casualty and Healthcare Group, Clyde & Co. #BIFMCME

Please note: This is a PowerPoint 2003 file. Do not work on this file in PowerPoint 2007 or It will distort the template settings in this file (EVEN IN THE COMPATIBILITY MODE) ESOS – AN OPPORTUNITY OR A COMPLEX BURDEN? Jason Bleasdale, Partner Clyde & Co Claims LLP

Background Energy Savings Opportunity Scheme (ESOS)  This new legislation has been implemented so that the UK can comply with Article 8(4) of the European Energy Efficiency Directive  Energy efficiency audits will be required by all large undertakings in the UK  It is estimated that this will cover in excess of 10,000 such organisations  Deadline for energy efficiency audits to be submitted: 5 December 2015

Timeline  31/12/14 – Qualification Date (no need to report this)  05/12/15 – Compliance Date (this needs to be reported)  Process is to be repeated every 4 years

Qualification: ‘large undertakings’ At least 250 employees (anyone with a contract of employment regardless as to whether or not they are part time or full time) Annual turnover over €50m and an annual balance sheet total of €43m The trade or business of the organisation is irrelevant provided the criteria of an undertaking (Section 1161(1) of the Companies Act) 2006 Comprises part of a corporate group (with this including a UK undertaking which meets the above criteria) Any entity which is subject to the Public Contracting Regulations is excluded from ESOS

Qualification – further considerations Details are assessed on the basis of the last accounts prior to 31 December 2014 (as submitted to Companies House) If there are changes after the qualification date then these are not material If an organisation is sold by a qualifying organisation through the period 31 December 2014 to 5 December 2015 then there is a need to comply with ESOS There is no need for audit of any assets and supplies sold or acquired during the period 31 December 2014 to 5 December 2015

Keys steps 1Conduct an ESOS assessment 2Conduct energy audits 3Identify energy saving opportunities 4Utilise a lead assessor to cover off items 1-3 above 5If the large undertaking/company is fully covered by ISO50001 then there is no need for the assessment and audit process to be followed and the certification alone will suffice 6In the normal course, obtain sign-off from a single Director 7Thereafter, ensure notification of the scheme administrator of ESOS to prove compliance

ESOS assessment Any existence of ISO certification? If not, then proceed as follows: -Calculate the total UK energy consumption. This calculation is relevant to assets, transport and organisations which the UK group undertaking(s) held responsibility for between 31 December 2014 and still own on 5 December Unless the supplies are to disaggregated subsidiaries (see below) -Identify the 90% of total energy consumption (‘Areas of Significant Energy Consumption’). There is some flexibility in relation to this. N.B.: utilise any coverage by ISO 50001, Green Deal, DECs and/or existing audits which meet the ESOS criteria. In addition, unconsumed supplier rule – where not used and yet it can be measured or reasonably estimated/calculated

ESOS audit Establish which audits need to be undertaken prior to 5 December Requirements to produce a compliant audit are as follows: -Use 12 months’ verifiable data (audit can have been done any time between 6 December 2011 and the notification date provided it meets ESOS requirements) -Obtain an analysis of the energy consumption and energy efficiency (utilising 12 months’ data to calculate, but this data must be post 31 December 2013) -Pinpoint practical ways to improve energy efficiency -Lead assessor determines any necessary site visits -Recommend cost effective ‘Energy Saving Opportunities’ -Pinpoint relevant estimated costs and benefits of the ‘Energy Saving Opportunities’ recommended

ESOS lead assessors Criteria:  Can be internal or external  Belonging to an ‘approved register’  Required to sign off the work himself/herself but can use analysis from others  Where there is an external lead assessor then there is only a need for ESOS sign off by one Director  Where there is an internal lead assessor then there is a requirement for sign off by two Directors  The Directors simply confirm that they have reviewed the findings. There is no specific form for this sign off to take

Sign off and record keeping Notification is done online to the EA No need to submit energy data or the improvements previously identified: simple organisation factual details will suffice Absolute requirement for such notification to be submitted by 5 December 2015 Evidence pack needs to record compliance in line with the following -Identified cost effective Energy Savings Opportunities -Details of both the ESOS assessment and also the audit (where applicable) -Identification of any non-compliant areas and equally certification for alternative compliance routes -Confirmation and a formal record of the sign off by the lead assessor

Compliance and enforcement Compliance Notice Enforcement Notice Penalty Notice -Civil penalties are triggered for failure to notify, failure to maintain records, failure to undertake an energy audit, failure to comply with a Compliance Notice, an Enforcement Notice or a Penalty Notice and for making a false or misleading statement Any appeal must be specifically based upon an error of fact, error in law or unreasonableness

Points of contact Jason Bleasdale, Partner Casualty and Healthcare Department Direct Tel Mobile

Rhian Gilligan Legal Director, Safety Health and Environment Regulatory, Clyde & Co. #BIFMCME

Please note: This is a PowerPoint 2003 file. Do not work on this file in PowerPoint 2007 or It will distort the template settings in this file (EVEN IN THE COMPATIBILITY MODE) CONTROL OF MAJOR ACCIDENT HAZARDS REGULATIONS 2015 (“COMAH”) Rhian Gilligan, Legal Director Clyde & Co Claims LLP

The history  SEVESO 1976  EU directives  Transposition into UK law via COMAH

Who does COMAH apply to? Manufacture, store, use “dangerous substances” in bulk quantities “Dangerous substance” – schedule 1 Nature & quantity of substances “Upper tier” and “lower tier” sites

Why the change? Alignment with CLP Buncefield disaster December 2005 BMIIB findings

Who is the regulator? The Competent Authority:-  Health and Safety Executive  Environment Agency  Natural Resources Wales  Office for Nuclear Regulation

The role of the competent authority Information dissemination Examination of safety reports Identification of “domino sites” Plan for inspection Enforcement

What do ALL COMAH sites have to do? Take all measures necessary to prevent MAH Limit the consequences of a MAH Notify & liaise with CA Prepare, submit & implement MAPP (& revise as appropriate)

What are the extra requirements for an upper tier site?  Submit safety report containing specified information to CA  Prepare, review & test emergency plan  Put the plan into effect in the event of an emergency  Provide information to those in the area of the site

What about the local authority? Prepare, review & test external emergency plans for upper tier sites Put the plan into effect in the event of an emergency Take certain steps if a major accident occurs

Summary of key changes Changes in tier Changes in classification Safety reports to be reviewed & amended to reflect CLP changes Disclosure of safety reports – case by case basis Update notifications Emergency plans

Point of contact Rhian Gilligan, Legal Director Safety, Health, and Environment Regulatory Department Direct Tel Mobile

Thank you Enjoy the networking! #BIFMCME