It appears that, for once, there are only a few changes to workplace legislation set to come into force in 2008. However, Claire Fuller reports, that does not mean there isn't a lot for facilities managers to be concerning themselves with legally over the next 12 months.

• How will the Corporate Manslaughter and Corporate Homicide Act 2007 affect facilities managers?
• How will the REACH Regulations impact on safety in the workplace?

A new statutory offence for deaths in the workplace, regulations on the safety of supply chain chemicals, the first step of the European Energy Performance of Buildings Directive and a continuing focus on the environment are just some of the legal workplace developments that facilities managers need to be aware of.

Corporate Manslaughter and Corporate Homicide Act 2007

• A 'remedial order', which is in effect a judicial improvement notice;
• A 'publicity order', which requires the defendant to declare themselves to be a 'corporate killer'.

As of 6 April 2008, all fatal workplace accidents will be investigated with the view to a Corporate Manslaughter prosecution.

Such investigations will be conducted jointly by the Police and HSE/Environmental Health Department. The CPS will take over the conduct of the prosecution once all the evidence has been collated.

The Regulatory Impact Assessment undertaken by the government predicts that approximately 12-15 prosecutions will be brought under the Act each year.

However, with over 240 people dying per annum as a result of workplace activities, it is difficult to see why all such deaths should not be investigated for possible proceedings.

Companies will only find themselves in the dock for the offence of corporate manslaughter if:

• They breach a relevant duty of care;
• The breach is a 'gross' breach;
• The gross breach falls "far below what can reasonably be expected of the organisation in the circumstances";Such a breach caused someone's death.

A company can only be found guilty if the way it manages its activities causes the death.

Senior management must have managed or organised these activities. These are individuals: "who play significant roles in (i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised or (ii) the actual managing or organising of a whole or a substantial part of those activities".

The new law also widens considerably when an organisation will owe a duty of care. There are three main categories. A duty is owed:

• To employees, contractors, temporary workers and even volunteers;
• As an occupier of premises;
• As a supplier of goods and services.

Of particular interest to facilities managers is the duty owed as an occupier of premises. They will need to ensure that any buildings being occupied are maintained in a safe condition.

REACH Regulations

The part of the REACH Regulations that establishes the European Chemicals Agency becomes operational in June of this year.

Suppliers will be obliged to carry out an inventory and identify where in the supply chain chemicals come from.

According to Unite, the union, in the long-term REACH should mean that there is much more information on the safety of chemicals that are used in the workplace.

Rather than simple safety datasheets, information will also be available on the dangers of substances when they are combined with other chemicals or are used for specific purposes.

If an employer receives information from a supplier or manufacturer that does not cover their use of the substance, then they should notify the supplier.

Even for substances where there is no safety datasheet there are still obligations on suppliers to give any information on potential hazards to all users right down the supply chain.

REACH should lead to dangers being identified earlier and the more dangerous substances either better controlled or substituted. Under the REACH system, industry will have to:

• Submit information to the European Chemicals Agency (ECHA) on the hazardous properties of all substances, prepare risk assessments, and provide control measures for using the substance safely to downstream users;
• Provide a registration dossier to the ECHA primarily to ensure no unnecessary animal testing is carried out;
• Get community-wide authorisations for the use of substances considered to be of high concern.

Although implementation begins in June this year, it will not be until June 2018 that REACH will be fully in force.

Immigration, Asylum and Nationality Act 2006

The Immigration, Asylum and Nationality Act 2006 (the new Act) was passed as part of a five-year plan by the government to overhaul current immigration law.

The new Act continues to make it illegal to employ someone not entitled to work in the UK - and employers may be fined up to £10,000 for each illegal worker.

Additionally, knowingly employing an illegal worker could result in up to two years behind bars, together with an unlimited fine.

This will apply to employees taken on after the new Act came into force on 29 February 2008. The current law will continue to apply to existing employees.

Employers will be able to avoid or minimise liability provided they have asked for sight of the prescribed documents, or combination of documents, set out in the Immigration (Restrictions on Employment) Order 2007.

Whilst not dissimilar to the current list, they are different and are contained in two lists.

List A documents demonstrate that the holder is either not subject to immigration control or has an unrestricted right to stay in the UK.

If the prospective employee is only entitled to work in the UK for a limited time, they will need to provide their employer with a document or documents under List B.

If so, the employers will only have a defence against liability for up to 12 months. These documents will need to be checked yearly to ensure that the employee is entitled to remain.

Irrespective of whether any of the documents in List A or B has been produced, the defence is not available if you are aware that the employee has no right to work in the UK.

Energy Performance Certificates

The first step of the European Energy Performance of Buildings Directive implementation is the requirement for Energy Performance Certificates (EPCs). These provide information about the energy performance of the building.

According to the Energy Performance of Buildings (Certificates And Inspections) (England and Wales) Regulations 2007, the EPC must show the 'asset rating' of the building, which is a numerical indicator of the amount of energy estimated to meet the different needs associated with a standardised use of the building.

The EPC will also include further ideas on increasing energy efficiency. The requirements for different building types are outlined below:

• Dwellings - since 1 August 2007 every home put on the market with four or more bedrooms has needed an EPC unless the home has been built to comply with the April 2006 building regulations.
• Non-dwellings - as of April 2008 all commercial buildings over 500m2 that are being sold or rented need an EPC and as of October 2008 newly constructed buildings regardless of size need an EPC.
• Public buildings over 1,000m2 - these will require Display Energy Certificates (DECs). A key contrast from the EPC is that the DEC includes a numeric indicator of the amount of energy consumed during the occupation of the building over a 12-month period. Also, the DEC needs to be displayed in the public view within the building itself.

It is the responsibility of the landlord or property manager to make sure the building has an EPC.

The aim of the Energy Performance of Buildings Directive is to increase awareness of energy use in buildings and to promote increased investment in energy efficiency.

It sets out to do this by establishing agreed measurements of relative energy performance and introducing regular inspections and re-evaluations.

Conclusion

Aside from these legal changes, there will be a continued focus on the environment and sustainability in 2008, as the raft of new environmental proposals outlined in Alistair Darling's 2008 budget shows.

The increasing number of government initiatives and international agreements on climate change suggests that sustainability will continue to grow in importance as an issue for governments, investors, employees, consumers and facilities managers alike.

Whether there will be any new legislation implemented in the future as a result of the continuing focus on green matters remains to be seen; there are currently more than a hundred pieces of legislation relating to the issue of sustainability anyway, making it an increasingly major part of the FM role.

There are also a few Bills currently going through parliament that may provide the legislative changes for 2009 - namely, the Employment Bill (designed to strengthen and clarify key aspects of employment law) and the Agency Workers Bill (to give temporary and agency workers wider employment rights).

So, as far as 2008 goes, there are only a few legal changes; however, with one of them (the Corporate Manslaughter Act) being heralded as one of the biggest changes to health and safety law since the Health and Safety at Work Act 1974, these changes are still likely to have a significant impact on the world of work.

Claire Fuller is News and Features Writer at Workplace Law Group. Please visit www.workplacelaw.net