Legal Legacy

18 December 2008

In the 10 years since Workplace Law held its first FM Legal Update conference, facilities managers has
been inundated with a wide range of regulation to implement across their estates. David Sharp examines
the legacy and looks forward to a future with even more legislation to come

PERHAPS IT’S A SIGN OF AGE, but recent years have seen a number of milestones. In 2005, my own company, Workplace Law Group, celebrated its 10th anniversary. A year later, I was invited by PFM to contribute an article celebrating 20 years since its launch and anticipating the changes in law and regulation
we could expect in the 20 years ahead.

And now a third milestone. February 2009 sees the 10th of Workplace Law’s annual Facilities Management Legal Update Conference and Dinner, an industry event that has attracted hundreds of FMs over the years, giving them practical insight into more than 150 Directives, Acts, Regulations, British Standards, Codes of
Practice, and recommended ways of working.

With our 10th anniversary conference ahead of us, it is a good time to take stock of the last 10 years, and to revisit some of predictions I made here nearly three years ago about the future of regulation and its impact on facilities management.

Debugging myths
Remember the turn of the Millennium? We were calling it “the year 2000” for some reason, and all the talk was about the ‘millennium bug’ which had the potential to trash computer systems across the globe. I remember the late Hugh Channon (co-founder of the FM training provider, Quadrilect) telling me that he’d done nearly £1m worth of conference business off the back of millennium bug in training facilities managers for the big day - which never came, of course.

April 2000 saw the first Facilities Management Legal Update Conference, supported by PFM magazine. The conference programme was buoyed by a raft of recent legislation affecting FM, including some major changes to health and safety law.

The Provision and Use of Work Equipment Regulations 1998 (PUWER) and Control of Substances Hazardous to Health Regulations 1999 (COSHH) had both updated the European ‘six pack’ regulations from 1992. The Management of Health and Safety at Work Regulations 1999 was also another significant
update.

1999 also saw further changes to the fire safety regime – the second set of amendments in two years – bolting on a new legal requirement for occupiers to carry out a fire risk assessment. This marked the beginning of an era of confusion for many premises managers, who were faced with the challenge of a dual
system for compliance - manage the risks themselves but also, operate under the remit of the fire certificate issued by the local authority.

Perhaps the most significant change for FMs at the turn of the Millennium was related to access for disabled people. Part III of the Disability Discrimination Act came into force in October 1999, relating to the provision of goods, facilities and services to allow equal access for disabled people. Part M of the Building
Regulations was reviewed at the same time and a new British Standard (BS8300) introduced shortly afterwards, to create a new landscape and new challenges for FMs in understanding just what adjustments might be ‘reasonable’ and therefore needed to be made, and where any decision not to make adjustments could be justified.

Our focus on disability and access at the annual conference saw the beginning of Workplace Law’s relationship with Disability Rights Commission Chairman, Bert Massie, always good value for insight and
entertainment at our events.

Birmingham and beyond
The subsequent year saw the FM Legal Update conference move to the International Convention Centre in Birmingham: a place few people could find, and many did not want to visit (some even confused it with the National Exhibition Centre!). The 2001 conference and following couple of years heralded an era of new regulation which brought with it major opportunities for suppliers to the FM sector. Disability discrimination legislation was bedding in, and new regulations were introduced to make the educational sector equally accessible in 2002.

The market was becoming flooded with suppliers claiming to be expert access consultants. It was the first notable time since the PAT testing ‘gold rush’ that legal compliance was being used to subtly threaten unwary clients. It is not the last time we will see it.

Asbestos
Asbestos surveying was the next gold rush. Britain was at the forefront of a tough new international stance on asbestos. Having banned the introduction of white asbestos into the UK in 1999, new regulations governing the control and use of asbestos were introduced in from 2002-4. Central to the new regime was the ‘duty to manage’ asbestos, which required premises managers, occupiers, landlords or owners to
compile a register of any asbestos present on the premises and put in place a management plan showing how it would be dealt with.

The regulations were quite clear: there was no legal requirement to undertake a survey - though in places, for practical purposes it may have been both helpful and necessary – and no legal requirement to remove asbestos if it was deemed less risky to leave it in situ, label it and actively ‘manage’ it. The legal requirement was to produce a management plan.

Despite this, many asbestos surveyors and removal contractors were pushing clients hard to win business, and the result is that to this day, while many businesses have had an asbestos survey undertaken, still many more do not actually have a plan which complies with the law. A report from October 2008 following a
random inspection of 90 business premises in Ongar showed that fewer than half of them are compliant.

Some in the industry would argue that standards were set too low. All it takes to certify competency as an asbestos surveyor is a threeday classroom course (the BOHS P402 Proficiency Certificate). While laboratories testing for asbestos are accredited by the United Kingdom Accreditation Service (UKAS), surveyors are not.

The green agenda
It was not until the Kyoto Summit in December 1997 that the European and UK governments began to tackle seriously issues relating to climate change. The last 10 years have seen a plethora of new rules on minimising packaging waste, reducing landfill, controlling electrical waste, and improving the energy efficiency of buildings. By the time of our 2004 event, ‘sustainability’ had just found its way into the
conference programme, addressed under the Sustainable and Secure Buildings Act 2004. Changes to Part L of the Building Regulations and a plethora of energy performance rules were introduced in the following years.

Whereas there was just one session on environmental law at our first conference (“The proposed Climate Change Levy due to be introduced in April 2001 will impose an ‘energy tax’ on all businesses”, claimed the
brochure!), it now forms a major strand of our conference programme.

Self regulation
The theme of the most recent years has been self-regulation. By 2006 the entire fire safety regime in the UK was replaced by a new legislative framework under the Regulatory Reform (Fire Safety) Order 2005 (and its variants in Scotland and Northern Ireland). The new law was an intelligent and coherent response to consolidate more than 100 existing laws and regulations governing fire safety. At the same time, it reinforced the principle of self-regulation: fire risk assessment would need to be undertaken by the occupiers and the fire authorities would turn from consultant to policeman overnight. Many have still not
grasped the significance of this move.

The guiding principle in this and nearly all health and safety and environmental legislation these days is that of ‘polluter pays’: whoever creates the risk is responsible for assessing and managing the risk. At each conference over the last 10 years, we have seen subtle changes in the way this principle is enforced, at first by the vast increase in penalties for serious misdemeanours, more recently through the introduction of ASBOs for company directors for environmental offences, and a new charge of corporate manslaughter where a company is in gross breach of its duty of care to others that has resulted in death.

New regulations have come thick and fast: ones affecting facilities management contracts such as Part II of the Housing Grants (Construction and Regeneration) Act 1996 and Contracts (Rights of Third Parties) Act 1999 are worthy of note.

The future
The predictions PFM's 20th anniversary issue in March 2006 were centred on four broad themes that look set to influence the workplace – and hence facilities management – for the next twenty years:

....Social reform, driven from Europe;
....The move to self-regulation;
....Concern for the environment; and
....The increasing emphasis on self-accountability.

Maybe I was too conservative? Age discrimination has been outlawed already, and Minister Harriet Harman has recently announced changes in the Single Equality Bill which will reduce inequalities further in the public sector. The building management sector is already being forced to comply with ever tougher legislation in the battle for a sustainable future.

The tidal wave looks set to continue. Landfill tax rates are rising; buildings must have energy ratings; air conditioning has to be tested annually. Add to this the requirements for managing site waste, water efficiency, and the air tightness of buildings, and you have a full time job in itself. What did facilities managers used to do?

Looking forward today I have been a little bolder. How about a sea-change in the way work is undertaken, maybe brought about by the rise of Chinese capitalism, the destabilisation of the western economies, or simply the knock-on effects of new technology?

I can see ever more work being undertaken from home by workers (not necessarily employees) who share responsibility for complying with the requirements of workplace law in a contract with their employer. Home
working fits with the aims of social and environmental reform: greater flexibility, a reduction in travel-related costs and carbon output; and a stronger emphasis on selfaccountability. For employers, it could reduce
workspace costs, and could help to unburden businesses from some of their onerous legislative requirements.

If technology is able to assist with this shift, and more importantly if employers, managers and workers are able to make these practices function effectively, what does that mean for the future of the facilities manager?

Combined role
There is an argument to say that, while there are business premises, there is a need for facilities managers. But my bold predictions for our 20th anniversary conference in 2019 are for a new combined (and exciting!) role which incorporates facilities management, health and safety, and human resources. Maybe the conference will look like this:

....It won’t take place physically, but the delegates will interact from home electronically.

....It won’t have the words ‘facilities management’ in the title.

....High up on the agenda will be the government’s new legislation surrounding the employer-worker contract, fusing together the employment and health and safety issues associated with home working, and putting more onus on the individuals to be responsible for their home workplace in return for greater flexibility.

....Case law on work-related stress will feature highly, with new regulations restricting how employers interact with workers.

....Data protection will be one of the major issues for employers to get to grips with as information security and intellectual property rights become even more highly guarded. In the meantime, I can strongly recommend the 10th Anniversary Facilities Management Legal Update Conference and Dinner, taking place at the Radisson SAS Hotel in Stansted from 3-4 February 2009.

● David Sharp is Managing Director of Workplace Law Group