Overcoming the Three Main Challenges to Ensuring Health and safety in Facilities and Property Management

For many years, McNeil Collective members have been supporting the best facilities and property managers with the essential legal principles of effective safety and fire management. We illustrate the three main challenges to success with a recent High Court case that led to fining one of the world’s biggest commercial real estate services companies ￡1.3 million. We then set out what you need to overcome these three challenges.

Before we start, I know the top safety management personnel at Cushman & Wakefield and have no doubt of about how seriously they take safety. The organisation is highly professional and nothing here is intended to detract from that. The same is also to be said for the likes of Bureau Veritas who also are also mentioned in this court case. This case is more powerful in showing the main challenges because of happening to such respected organizations. 

What is at Stake - A High Street Pedestrian Killed

On 23 February 2017, during “Storm Doris” at 11.38am Ms Tahnie Martin was walking with a work colleague, Ms Raman Sarpal, in Dudley Street next to the Mander Centre, Wolverhampton. She was struck and killed by a large and heavy wooden panel which had been blown off the top of a plant room roof on level 6 of the Mander Centre. Other large wooden items had also been dislodged from the same roof and landed in the same area. Ms Sarpal was also knocked to the ground and injured. 

Cushman & Wakefield had been the managing agent for the Mander Centre since September 2012. Its responsibilities included identification of the structures and facilities making up the building as necessary for planning and risk assessment purposes. According to the judge,

“It failed to identify a former ventilation shaft with a substantial wooden louvered hood and a disused water tank topped with a large wooden panel structure. The structures were not inspected or maintained in any way whilst under the Company’s charge. They were omitted from maintenance plans. By 23 February 2017 the parts intended to secure the structures to the brick were entirely rotten and/or corroded.”

Lots of Inspections - Including by Consultants

Did this failure arise from a lack of internal and third party inspections? Clearly not. There were many inspections as follows:

·      There was a workplace health and safety procedure requiring routine inspections, including routine building management safety inspections at least every three months and risk assessments at least every three years.

·      A 2013 report on “Working at Height” produced by an external provider showed photos of the ventilation duct and water tank in poor condition;

·      A 2014 desktop exercise carried out by one of the Company’s inhouse surveyors for the purpose of PPM mentioned the plant room roof and set out planned works to the roof coverings in the bracket of 6 to 10 years. There was no mention of the ventilation duct or water tank;

·      In July 2015 another of the Company’s inhouse surveyors visited the building to identify essential works required over the next 5 years, including to bring the building into wind and weather tight condition. Photographs within the resulting report clearly show the water tank and the ventilation shaft – and in visibly poor condition. Multiple roof works were identified, but none to the plant room roof (or the water tank or ventilation shaft there);

·      Works were carried out in 2016 to replace the wooden doorways on the plant room building immediately below the water tank structure. It would (and should) have been obvious that wooden items on the roof would likewise have needed maintenance, if not more so.  

·      There were also inspections of Level 6 by The Building Operations Manager, alongside monthly (unrecorded) inspections of the building’s exterior. The Company states that such inspections did not normally extend to its roof.  There were also 6 monthly inspections which appear to have also gone unrecorded, at least in part. 

The Building Operations Manager was responsible for the routine inspections. Health and safety risk assessments were undertaken by third party well-respected specialists engaged by the Company, namely Bureau Veritas UK Ltd and William Martin Compliance Solutions Ltd, subject to agreed specifications which included reporting obligations. The specification for WM’s work included an expectation that WM would be alert to other areas of health and safety risk and for this to be brought to the Company’s attention as appropriate and a requirement that WM would communicate any issues outside the scope of its report/site visit which could pose a wider health and safety risk. WM produced risk assessments on the Mander Centre, including in 2015 and 2016.

The Company also provided surveying services at the Mander Centre on behalf of the landlord, including the carrying out of Planned Preventative Maintenance (“PPM”) surveys.

Analysis of Cause

With that reasonable summary of the background it is now possible to make some meaningful observations about the cause based upon the Judge's conclusions. The Judge noted:

“No inhouse or third party surveyor expressly drew attention to the presence or dangerous condition of the structures despite reporting obligations… it over-relied on third party advisors”

“However, and in any event, reports were produced which showed the structures [in photographs] and in poor condition. The Company was in possession and aware of these reports which identified those structures and was on notice, in 2015 for example, of the need for doors and other structures on Level 6 to be repaired. The building contractor engaged to carry out works from time to time at the building (Bowmer & Kirkland Ltd (“B & K”)), as with other consultants, contractors and surveyors, was never asked to survey or work on the plant room roof. In the words of Lord Hoffman in R v Associated Octel Co Ltd [1996] 1 WLR 1543 (at 1547F-H), the Company did not “stipulate for whatever conditions are needed to avoid …risks [to people’s health and safety] and are reasonably practicable”. 

“[Some] Quarterly routine building management safety inspections were not undertaken and the adequacy of such assessments as were carried out was not checked.”

This illustrates the three weaknesses common to facilities management

1.      A lack of health and safety awareness of otherwise highly experienced internal surveyors

2.      An over reliance on third party advisers

3.      The difficulty of assimilating and acting upon the conclusions in risk assessments and reports

Remedial steps taken by the Company

Following the incident the Company established a working group to consider improvements to its practices, policies and procedures to ensure that risks arising from structures such as those on the plant room roof could not be missed in future. The outcome of that work included the implementation of building public risk assessments involving additional training for building surveyors and operations managers and those in similar roles; revision of the routine building inspection form; a greater level of audit of external consultancy work; enhanced role profiles for front line operational staff; changes to leadership performance evaluation; amendment of building survey instructions; development of new working procedures to ensure coordinated responses to surveys and inspections; improvements to the quality management system; repairs to the building itself.

Three challenges

Gathering the Right Safety Data

Lots of reports were being produced in this instance. No doubt over the years, by means of those reports many safety issues were identified and well addressed. However, some of the biggest issues in safety relate to what is happening on the roof, in the basement, or in building services. You will find that many consultant inspection reports or internal audit reports omit such areas because they, “Could not be accessed.” Third party reports often prefer to deal with common hazards in minute detail producing many pages of documentation about relatively trivial risks while neatly bypassing responsibility for properly assessing overall risk.

This can be overcome by ensuring that inspectors can safely access all key areas. They need to be tasked with answering rigorous (but not necessarily numerous) questions about whether operations are really safe. If third party advisers are used they should make a meaningful contribution to the assessment of risk. You need to know how to manage third party advisers and it may be better to upskill internal resources for routine matters, even if staffing levels are very small, because of the extra knowledge of operations that such ones have. Training of operational personnel to ask the right questions can get better results than half-hearted third party general risk assessments.

Use topflight consultants to carry out cross audits and verification audits to see if the system is working right and feed into senior management with their recommendations.

Prioritising Safety Data

Far too many health and safety reports contain hundreds of action points even in a relatively low risk operation. That might be ok if they are real risks and clearly prioritised. However, it is not helpful if such a report contains many action items that appear to be trivial or repetitive. It is like paying for a car with coins. They are the wrong denomination and waste time. If there are lots of action items in a risk assessment, find the common theme and determine its priority. In the case in point, a report on level six should have an one action like, “The redundant wooden structures on level 6 are rotten and at risk of disintegration in high winds and are a threat to life. Remove or repair. Priority: Urgent.” This could be lost if the report found 30 faults with such structures all of which were a mid-level priority. Worse still, as seems to have been the case, there were many years of reports with lots of action items none of which correctly answered, "Is the structure safe?" (mainly because they never went on the roof!). Prioritised risk assessment reports must clearly identify the main things that need to be done to make an operation safe.

Acting on Safety Data

Open action items are dangerous – a ticking time bomb for civil and legal action. 

Some third party consultants take two to four weeks to produce the report for the target organisation which does nothing to reinforce the importance of the contents. It is essential that reports are received immediately after the inspection. If research has to be done on some points this must not be allowed to delay the submission of the initial report. A report that is well written and clearly prioritised and delivered quickly should greatly help in opening up resources for the necessary action.

Many third party reports do not specify what remedial action is necessary and this is understandable because it really is for the target organization to do this, but clear recommendations are certainly appropriate and should be within the competence of any inspector. Further, urgent action to avert an immediate risk should be identified and specified in the report and quickly communicated.

For effective action, organisations should develop the capabilities and support mechanisms necessary to receive and address risk assessments in line with their own health and safety policy, objectives and targets. Staff involved in receiving and acting on the report should be identified and their performance reviewed. Risks should be eliminated according to the hierarchy of control.

There should be a shared common understanding of the organisation‘s vision, values and beliefs on health and safety to which the report contributes.

The visible and active leadership of senior managers in following through on reports is also needed. Organisational self-monitoring reveals how effectively the safety and health management system is functioning. 

Conclusion

Things falling or blowing off a roof is an ordinary risk of which any householder should be aware, let alone a facilities management company with qualified surveyors, building maintenance personnel and safety advisers at its disposal.

Risk assessments need to be layered to ensure main risks stand out and get assessed and acted upon and are not buried in the wrong kind of report.

Third party advisers are not going to take the blame for you. Use them wisely and make them responsible for properly answering the main questions. Ensure that their work is part of your system, and do not rely on them to be your system.

Have an effective mechanism for handling risk assessments and reports to ensure they are followed up and that significant risk feeds high enough into the organisation to prompt action.

Recommendations

Step back and find the main risk categories of any operation. Do this internally or benefit from a McNeil Collective Strategic Risk Management Review.

Take control of your own safety system. Ensure all reports are helpful to your system and do not depend on third party advisers to be your system.

Find consultants that are not interested in “landing and spreading,” but rather empowering you with the skills and tools to manage the risks of your own operation. After a while, if they do their job well, you should not need them much.

Use the best consultants to do a cross audit or verification audit of your own system.

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