Working in Hot Weather

During the summer months we can look forward to some hot weather, however, it is not what most people consider to be ideal working conditions and it carries risks whether you work inside or out.

What constitutes acceptable working temperatures?

Under the Workplace (Health, Safety and Welfare) Regulations 1992, the temperature inside workplace buildings, during working hours, must be ‘reasonable’. But what is meant by ‘reasonable’?

Health and Safety legislation does not refer to maximum temperatures, but it states, “the employer must provide a working environment which as far as is reasonably practicable, is safe and without risks to health.” Therefore whatever the temperature and measures taken to control it, the result must be a workplace that is safe and without risk to health.

What does it mean in practice to safeguard the health, safety and welfare of employees at work? We want employees to remain safe and healthy even when they are not at work, so what advice should we give them?

Indoor Workers

People working indoors have a broad mix of conditions to cope with, ranging from those who work in air conditioned offices to others who are in accommodation that offers little or no defence against outside temperatures.

People who particularly need our sympathy are those who work in premises that are hot and humid at the best of times, such as kitchens. High outside temperatures usually make things so much worse and there may appear to be little that can be done to improve the conditions because of the nature of the work being carried out.

Adequate ventilation must be ensured. Additional fans may be needed and efficient means for extracting stale air. In the worst cases, it may be necessary to call on the services of a ventilation engineer to solve the problem.

It is in everyone’s interest to address these issues because, apart from the risk to health, people who are working in premises that are too hot and humid will be uncomfortable and less efficient. That in turn is likely to lead to lower productivity and increased risk of accidents.

Outdoor Workers

Outdoor workers run major risks from sunburn, sunstroke and heat exhaustion and the risks typically increase for those involved in heavy physical work.

If adequate precautions are not taken, there are further risks with the possibility of rashes, burns or even skin cancer. The people most at risk are those who have fair skins and who don’t tan quickly. Whatever your susceptibility, good sun protection creams may help.

Recommended precautions, however, include frequent and plentiful drinks (clean water being preferable to other types of drink), with regular rest breaks in a cool place. Clothing should be worn to protect from the effects of direct radiation but, for obvious reasons, it should be light and loose fitting to allow body heat to escape easily.

Vulnerable Workers

Some people are more vulnerable to the effects of heat than others. A good example is pregnant workers.

Apart from personal consequences for the mother, breastfeeding may also be impaired by heat dehydration.

Regardless of temperature, employers are required to undertake specific risk assessments for pregnant workers. Typical temperatures in the workplace and the effects of particularly warm spells of weather should be included as part of such assessments.

Simple arrangements need to be made to combat the effects of excessive heat, such as ensuring adequate rest provision, along with suitable refreshment facilities.

Precautions

So in general, what should employers do?

The first task is to assess the problem. People’s comfort depends on a number of factors including humidity, air movement and change, heat sources associated with the work and any protective clothing that has to be worn. It is fair to say that if most people are complaining about the heat, then action needs to be taken regardless of thermometer readings.

Alongside assessing the problem, it is also worth assessing the effectiveness of control measures that are already in place. Is the air conditioning in need of maintenance or repair? Are window blinds broken? Are there sufficient fans and are they strategically placed? Is there an adequate supply of clean drinking water?

Other, less routine, possibilities includes examining job design or organisation of the works to move people away from direct heat sources (including windows, for example). Heat gain from windows can also be controlled at little additional cost by applying reflective film.

The next task is to ensure employees know how best to cope with the hot temperatures and, perhaps, relax such things as dress code. Employees should be actively encouraged to take plenty of drinks. Water coolers might encourage people to drink more water rather than other drinks, particularly anything containing caffeine. Outside workers in particular need to be able to recognise the symptoms of heat stress and how to deal with them.

If the problem is persistent, it may be appropriate to look at longer term solutions such as installing air conditioning or upgrading an aging system. Even small portable air conditioning units can make a useful contribution.

Although the law is vague when it comes to precise numbers, that doesn’t mean we are without authoritative guidance.

In terms of maximum temperature, the World Health Organisation recommends 24ºC(that is 75ºC). The Chartered Institute of Building Services Engineers recommends an acceptable temperature range for most types of work as 16ºCto 23ºC(that is 61ºFto 72ºF). However there are different ideal temperatures suggested for different workplaces such as 20ºCfor offices, 19ºC for hospital wards, 18ºCfor shops and 16ºCfor warehouses.

Given the cold and wet that we have to cope with for most of the year, we should be able to enjoy the occasional heat wave. We are all responsible for each other’s welfare, including employers and employees. So let’s do all we can to keep our cool as well as our safety and health during the hot weather.

For Further Information contact: mike.martin@tldallas.com or david.cartwright@tldallas.com

A New Threat & Maybe A Nasty Phone Bill

 

One of our Unitas Partner Insurers, QBE, has recently reported on a new threat to hit business. Phone Phreaking is a fraud where commercial phone systems are hacked in order to place outbound calls to premium-rate numbers. These numbers are controlled by the fraudsters themselves and can be charged at extortionate rates.

It is an attractive scam to the criminals; it’s carried out remotely, difficult to prevent and unlikely to be detected until a large phone bill arrives.

Although still a relatively new crime, Phone Phreaking is already estimated to cost UK businesses over £1bn per year, with the average cost of a UK attack thought to be around £10,000. Currently there is no silver bullet for preventing this fraud, save investing in an expensive software solution.

QBE provides up to £50,000 cover for Phone Phreaking under their Cyber & Data Security policy.

If you have any concerns please don’t hesitate to contact us so we can look at the options available to insure your business against these types of losses.

Mike Martin

Group Director

 

mike.martin@tldallas.com

Warning over new ‘flash for cash’ insurance scam

Criminals gangs tricking motorists before intentionally crashing into them

Investigators are warning about a new tactic by criminal gangs, dubbed ‘flash for cash’, where a driver flashes their lights to let another driver out of a junction, and then crashes into them deliberately.

The criminals then make money by putting in false personal injury claims for whiplash and loss of earnings, as well as submitting fake bills for vehicle recovery, repair and replacement car hire.

The Asset Protection Unit, which investigates fraud in collaboration with police and the insurance sector, has warned that the fraudsters often target elderly motorists or women with young children – drivers they believe will not challenge them on the scene.

And the new scam is harder to prove in court, because it comes down to the innocent driver’s word against the criminal’s that they flashed their lights to let them out.

 The number of flash for crash scams are not known, but the IFB estimates that 380 fraudulent personal injury claims from deliberate crashes are made every day and cost the motor insurance industry £392m every year.

 Detective inspector Dave Hindmarsh from the Metropolitan Police told the BBC: “[There are] emotional costs if you’re involved in a crash: you could well lose your confidence, and if your passengers are children they may well become wary of being passengers in cars, and of course you may get injured or killed.

 “It’s an extra £50 to £100 on every person’s premium, so that’s a financial cost.”

 

This article has been taken from The Insurance Times dated 16th August 2013 

http://www.insurancetimes.co.uk/warning-over-new-flash-for-cash-insurance-scam/1404027.article

The Herald Family Business Breakfast is Back

TL Dallas is delighted to be sponsoring The Herald Scottish Family Business Breakfast again this year, alongside Business GatewayCampbell Dallas, Clydesdale BankStrathclyde Business School, Turcan Connell and Western Pension Solutions.

The breakfast event takes place on Tuesday, August 20 at WEST on the Green, Glasgow and will see lively discussion and debate on matters affecting family businesses in Scotland.

This breakfast is free to attend for anyone in Scotland who runs or is part of a family business. Please note, places are limited for this event, so secure your invitation now at https://lnkd.in/diarxfP.

Find out more here.

What Keeps Directors Awake at Night?

TL Dallas recently partnered with Brodies to host a breakfast seminar to examine and discuss the roles, responsibilities and potential liabilities which face directors and senior staff in today’s ever-changing business environment.

Topics covered included:

  • Directors & Officers – responsibilities and liabilities
  • Companies Act 
  • Corporate Homicide & Manslaughter
  • Health & Safety prosecutions
  • Cyber threats

A webinar of the event is now available here.

 

To discuss any aspect of business insurance further please contact Tim Mackenzie on 0131 322 2632 or email tim.mackenzie@tldallas.com.

TL Dallas acquire Buckingham House brokerage

The recent acquisition by TL Dallas of the specialist book of demolition insurance business of Buckingham House (London) Ltd, will trade from our City office as TL Dallas (City) Ltd t/a Buckingham House.

The founder of Buckingham House, John Norbury has  over 30 years experience as a qualified insurance broker and has specialised in insurance for the demolition contractors and allied industries since 1991. Buckingham House has also been an active Industry Service Provider member of the National Federation of Demolition Contractors since they were established.

We are pleased to extend our service offering through this acquisition and particularly pleased that Mark Clements who has worked with John Norbury for 25 years, has joined the team in City office with John continuing to act as a consultant.

TL Dallas’ Managing Director, Polly Staveley comments, ’We are delighted that John has agreed to sell his book of business to TL Dallas – it fits very well with the existing construction sector expertise that we have within the team in our City office and is further enhanced by the fact that Mark Clements, who has worked with the clients for over 20 years, has joined our team. We are looking forward to working with the clients and developing the business further.’

If you would like more information regarding demolition insurance please contact:

Mark Clements – mark.clements@tldallas.com or call 07881 934054/0207 426 5347
Mike Mitchell – mike.mitchell@tldallas.com or call 07496 888411/0207 426 5343

Alternatively, email enquiries@demolition-insurance.com

 

Helping you through Winter – hints and tips for buildings

In the Winter months, the maintenance and protection of buildings are put to the test. We offer some practical advice for a couple of the most common issues.

Keeping Pathways Clear

You have a duty of care to ensure that any visitors are safe; this is particularly relevant over the Winter period. 

Unfortunately, slips and trips can happen, particularly when there is ice and snow on the ground.

You should take actions that are ‘reasonable in the circumstances’.

This can include ensuring that entry and exit routes are kept free of anything which may cause a person to slip and taking preventative measures, such as clearing and gritting paths. It is not necessary to clear every available path immediately, as long as there is one safe route available to access the building. The longer the snow and ice remains on the ground, the greater the risk of an accident occurring. 

Protecting Water Pipes

  • Ensure your pipes are in good condition and your heating system works properly and efficiently 
  • Have the boiler and heating system serviced on a regular basis
  • Familiarise yourself with the location of the stopcock 

If you discover a frozen pipe DO NOT WAIT! Turn off the water supply and slowly allow the pipe to thaw. 

Should you discover a burst pipe, turn off the water supply and seek to catch any excess water in a suitable container and then call a plumber. Do not use electrics if you believe they have been affected, they should be checked over by an electrician. 

For more information about protecting your buildings during the Winter months, please speak to your local TL Dallas branch.

 

Directors & Officers Insurance: A Business Necessity

There has never been a more important time to make sure that those senior individuals, either running or representing their organisation, are fully protected against claims made against them for the mismanagement of an organisation.

Whilst it may well be a very satisfying moment for new Directors or Trustees to join the Board, they are also obliged to accept new and potentially onerous responsibilities. If a Director (or trustee) is believed to have breached their responsibilities or duties by any one of a number of internal or external stakeholders, it can have significant consequences. The judicial system is easily accessible and even if an action doesn’t reach the courthouse, Directors can find themselves seriously out of pocket.

Those with responsibility can find their personal assets at risk – including their own home or savings – but there can also be severe reputational damage. Given the new legislation around General Data Protection Regulations (due in 2018), responsibilities will continue to increase. Directors need to remember that if they are fined or have costs awarded against them, they cannot recharge this to the business and it becomes a personal liability.

Directors and Officers (D&O) policies have been around for many years and the number of organisations that purchase cover has increased significantly over the last few years. However, not all organisations purchase cover and continue to ignore the potential risks. Given that the cost of D&O has dropped significantly over the last few years, it is harder to justify to a Board why cover hasn’t been purchased.

Employment claims are on the increase, particularly with employment legislation becoming more complex and changes to the rules around employment tribunal costs. Alongside this, breaches of Health & Safety legislation can also have serious repercussions on a Director who may just be acting on third party advice, despite their ultimate responsibility.

 

Potential claims against Directors can come from a number of areas under the general heading of “mismanagement of the business”.

Regulatory investigations are also becoming more common and with the impending introduction of the General Data Protection Regulation in 2018, Directors need to be absolutely certain they are protected by a robust D&O policy with a dependable insurer.

D&O insurance is designed to protect Senior Executives (or those acting in that role), from the financial implications of a legal action against them, whilst they are carrying out their duties as a Director or Officer of the business. The policy will pay for the costs of defending a claim up to and including any court action and also any compensation that is awarded.

While the core insurance cover is the same amongst insurers, not all policies are equal and the devil is in the detail. It is vitally important to check endorsements and exclusions to ensure you are properly covered.

D&O cover is here to stay and will provide comprehensive protection to allow Directors to carry out their daily tasks and responsibilities without the fear of personal financial disaster.

 

To discuss further please contact Tim Mackenzie on 0131 322 2632 or email tim.mackenzie@tldallas.com.

 

A Guide to Business Interruption

In business, continuity is the baseline of success. It goes without saying really, continuous revenue and cash flow without interruption is the lifeblood of SMEs.

Ensuring a business has the correct insurance to continue to trade irrespective of internal and external factors, is absolutely key to that business’s success, regardless of size.

While this isn’t news to most business owners, there can sometimes be a gap in understanding the options available for the worst case scenario of when a company is forced to close operations for an extended period. Business Interruption insurance deals with the continuity of income after insured property is damaged or lost after a catastrophic event.

It operates to cover business cash flow and in the process also protects the owner’s income stream and their investment in the business. The cover pays for ongoing costs that continue regardless of whether the business is closed or substantially affected; e.g. rent and utilities. It also covers additional costs incurred to minimise the effects of the closure or downturn, plus net profit and/or loss. In most cases, claims are triggered by weather or fire events.

 

Protecting your business priorities

Risks can range from increased frequency and severity of existing risks, such as climate change impacts on storms, water levels, bushfire risk; to new risks that develop through advances to technology and social or political changes, including terrorism, regulatory changes, pollution and other environmental impacts or food supply.

However, the risks faced by a business will vary based on the company, it’s critical operations, the risk management options available and a business owner’s risk appetite.

 

“Business owners should be mindful not to underestimate the length of time it could take for the company to be back to full operating capacity.”

 

In terms of purchasing Business Interruption cover, the business owner has three concurrently operating areas of interest:

  • paying ongoing business expenses to ensure the business is not wound up, and to protect the capital already invested into that venture
  • meeting personal guarantees given in connection with the business, and
  • maintaining personal income

 

Consider indirect risks to your business

Business owners can often overlook risks that could indirectly impact their company, so it’s important to take this into consideration too. 

Indirect business impacts refer to events affecting property other than the insured’s own. That includes damage to the premises of customers or suppliers, providers of public utilities, access issues due to damage to adjacent premises, or to roads, bridges or railways.

Given the potential ripple effect of damage an event such as public utilities breaking down could cause means almost every type of business can be affected.

The indemnity period explained

The indemnity period is the amount of time during which a business owner can claim the benefits of their Business Interruption insurance policy. It is typically the most important part of arranging the policy because the period decided will determine the total loss of interruption.

Business owners should be mindful not to underestimate the length of time it could take for the company to be back to full operating capacity.

The first consideration is the expected re- building period, but this will vary depending on the structure and there can be delays between the date of damage and the date when all necessary approvals have been received to start reconstruction.
There may be a considerable delay associated in moving back into premises, getting new supplies and attracting a new customer base.

Cover does not automatically cease when the building, or other damaged property, has been repaired or replaced. It will continue, subject to the indemnity period selected, until the results of the business are no longer adversely affected.

The period required will depend on the circumstances of each business but because maintenance of income is a primary consideration to owners and employees, the period selected should not be so short as to create a risk of business failure through shortage of cash-flow in the final stages of the recovery process.

It’s useful to also consider any lease requirements if the business operator is a tenant, in terms of liability for rent and other outgoings.

 

Article written from opinion taken from one of our Partner Insurers, QBE Europe.

 

As business insurance specialists, TL Dallas can arrange the policies that best meet your business needs. Please contact your local TL Dallas Business Insurance Team for further details.

 

On The Right Road?

When and where do different vehicles need Road Traffic Act (RTA) cover? When will Public Liability cover suffice? Tom Aldridge at TL Dallas explores these questions, which have become more complicated after the statutory requirement for compulsory vehicle insurance altered – so that now vehicles must be insured for use on a road or other public place (Section 143 Road Traffic Act 1988 as amended by the Motor Vehicles [Compulsory Insurance] Regulations 2000).

Over the years, discussions surrounding this change have highlighted situations where individuals – whether members of the public; staff; or, in the case of golf and country clubs, paid-up club members – could be exposed to injury from mechanically-propelled vehicles (MPVs). In many cases, the MPV may not fall within the definition of the Road Traffic Act 1988. This states a ‘motor vehicle’ is a mechanically-propelled vehicle intended or adapted for use on roads.

The golf buggy, the luggage trolley and the zoo bus are, in many cases, direct derivatives of the ubiquitous milk float, which is certainly intended for use on roads.

 

Private or public?

A better starting point is to perhaps define what does not amount to a road. The simple answer is “private land to which the public does not ordinarily have access”. However, even this definition is open to argument and caution needs to be exercised.

Using the example of a private golf club, we need to question just how ‘private’ most of these are. In many cases, most private courses advertise that visitors are welcome. In addition, we have competitions such as The Open where the course and its facilities are swamped by paying spectators. For these reasons, a ‘private’ establishment can be very public indeed.
In all of these situations, people are exposed to MPVs – on the course; on paths; on access roads; and in car parks. Sooner or later, there will be a claim large enough to attract the attention of the public liability underwriter or, alternatively, there will be no insurance at all and an enterprising solicitor will involve the Motor Insurance Bureau.

Just think about it – perhaps at Carnoustie in July 2018, Rory McIlroy has a three-foot putt for The Open and he catches his fingers in the door of a golf buggy driven by a 15-year old volunteer. Itis only in such an extreme case that one could expect to see a definitive legal judgement and whether ‘intended or adapted for use on roads’, or ‘other public place’ will actually be clarified or expanded upon.

In Scotland, the consideration of the meaning of a road has particular significance due to the “right to roam” legislation – which gives members of the public the rights and access to cross land for recreational purposes, provided they exercise the right reasonably and provided it does not adversely affect privacy of the landowner. We would therefore encourage clients to effect Third Party (TP) Motor cover for anything self-propelled used anywhere in Scotland.

Commercial Motor insurers remain able to provide Third Party Road Risks cover at a relatively nominal cost on virtually anything self- propelled. The following could be considered to be amongst the advantages of Third Party Motor cover, in comparison to Public Liability (non Motor) cover:

 

Limit of Indemnity Public Liability policies ordinarily have more modest limits compared with TP Motor policies – which of course legally require to provide unlimited TP injury limits, as well as a TP property damage limit for non-cars (normally this is £5M, but can be higher).
Excess The RTA obviously prohibits the imposition of an Excess/Deductible on TP Motor claims. Public Liability policies ordinarily have Third Party excesses; usually property damage but sometimes, and increasingly, also personal injury. The Public Liability policy excess is often relatively high when out with the traditional composite providers.
Protecting your claims experience In our portfolio of commercial clients, typically, the Combined Liability policy is the largest spend in the client’s programme. Protecting the claims experience on that policy is therefore arguably paramount to avoid the risk of penal terms being applied to the Policy which could impact on client’s Liability spend.

 

 

The British Insurance Brokers’ Association’s (BIBA’s) counsel is always to effect Third Party Motor cover as opposed to relying on the likelihood of a Public Liability non-Motor cover responding; the ultimate fears of reliance on the latter being at some point when a large claim (inevitably) occurs, a senior Public Liability underwriter and/or an enterprising lawyer could potentially make the case precedent for a Motor policy being the only source of indemnity available to an aggrieved policyholder. The larger the claim, then arguably the more likely this outcome could occur.

With thanks from insight supplied by British Insurance Brokers’ Association (BIBA).

 

If you would like to discuss this topic in more detail, please contact your Account Executive or local TL Dallas office.

 

Terrorism: What can you do?

In light of continued terrorism attacks and subsequent changes to the UK Government’s threat levels, businesses and individuals are urged to be extra vigilant.

The National Counter Terrorism Security Office (NaCTSO) has issued a National Stakeholders Menu of Tactical Options in response to this raised threat level. It is recommended that all businesses/partners read and consider these. NaCTSO are not at this time recommending any specific changes to how you operate, but recommend that you consider increasing and/or reviewing the following:

  • Security presence
  • Staff Vigilance
  • Partnership working
  • CCTV

Whilst these measures are quickly achievable, by far the greatest asset and tactic you have is engaging staff who deliver a high level of quality of service – by speaking to visitors to your buildings and challenging those displaying unusual behaviour.

You should also review your building and business continuity plans in the light of this attack, ensure that first aid points are fully stocked, and make sure that the location of key equipment is made clear to all staff. We also recommend that employees are directed to the Citizen Aid app and Run, Hide, Tell on YouTube.

The NaCTSO recognise that many businesses will have innovative ways of managing protective security. They ask that where you think you have a tactic or operating model that could be utilised by another similar organisation to good effect, that you share it with the NaCTSO so they can, in turn, share with others.

A final point to note, all terrorists use hostile reconnaissance in attack planning and we are reminded by the NaCTSO of the need to train staff and remind everyone of the vital role they play in recognising hostile reconnaissance. If in doubt, call the anti-terrorist hotline on 0800 789 321 or in an emergency, 999.

Useful Links

The following links provide additional useful information that may assist when deploying the tactical options:

https://www.cpni.gov.uk

https://www.gov.uk/government/publications/stay-safe-film

https://www.gov.uk/nactso

https://www.mi5.gov.uk

 

If you have any concerns or queries regarding your security arrangements, please contact your usual broking team or Gary Foggo (Health & Safety Consultant, TL Dallas) on 07920 862983 or email gary.foggo@tldallas.com.

 

Terrorism Insurance:

The nature of terror attacks are changing and so therefore are the types of insurance available. You may well suffer a loss of business following terror attacks even if the attack does not directly affect your premises and there are types of cover, such as ‘Active Assailant, loss of attraction & threat’ that would cover you in these instances.

For more information please contact your TL Dallas broker or email michelle.clewley@tldallas.com.

Cyber Crime

As cyber attacks continue to rise and in the wake of the recent NHS cyber breach, UK-based businesses of all sizes are being urged to protect themselves against online crime. Recent government statistics showed nearly half of all UK businesses suffered a cyber breach or attack in the past year.

A recent survey* reveals nearly seven out of ten large businesses identified a breach or attack, with the average cost to large businesses of all breaches over the survey period in 2016 being £20,000 and in some individual cases reaching millions.

The survey also shows that personal data is still a lure for criminals, with businesses holding electronic personal data on customers much more likely to suffer cyber breaches than those that don’t (51 per cent compared to 37 per cent). The most common attacks detected were via ‘phishing’ (fraudulent emails).

Almost all businesses rely on information technology (IT) infrastructure to transmit and store data including, employee and customer records, company business records, e-mail and telephone services, company website and online sales.

 

So, what is Phishing?

Phishing is a form of social engineering that uses email or malicious websites to solicit personal information from an individual or company by posing as a trustworthy organisation or entity. These kind of attacks are often via email and appear to be from an institution or company that the individual does business with. For example, a bank, or a web service the individual may have an account with.

The goal of a phishing attempt is to trick the recipient into providing login credentials or other sensitive information. For instance, a phishing email appearing to come from a bank may warn the recipient that their account information has been compromised, directing the individual to a website where their username and/or password can be reset. This website will also be fraudulent, well designed to look legitimate, but exists solely to collect login information from phishing victims.

These fraudulent websites may also contain malicious code which executes on the user’s local machine when a link is clicked from a phishing email to open the website.

 

How to identify Phishing attacks

As noted above, phishing is most often initiated via email, but there are ways to recognise suspicious emails from legitimate ones. Training employees on how to recognise these malicious emails is a must for enterprises who wish to prevent sensitive data loss.

In many cases, these data leaks occur because employees were not armed with the knowledge they need to help protect critical company data. The following may be indicators that an email is a phishing attempt rather than an authentic communication from the company it appears to be.

  • Emails with generic greetings
  • Emails requesting personal information
  • Emails requesting an urgent response
  • Emails with spoofed links

When in doubt, contact the company in question to find out if the email is legitimate. If it is not, the company is now aware and can take action to warn others of potential phishing attempts appearing to come from their company.

Therefore, companies are exposed to risks which could disrupt business and potentially incur huge unexpected costs. It could also lead to loss of income and possibly reputational damage if companies are unable to trade. In addition, private information held on your employees and customers could be lost, damaged or stolen.

 

What can you do to protect your business?

TL Dallas has access to a number of insurers offering Cyber Liability Insurance to help limit the impact of any breach. We have detailed below how such a policy would work and the processes that would be put in place should a breach occur.

The policy is triggered either by:

  • Loss or suspected loss of non-public data. This could be as a result of misplaced/lost/stolen files or electronic devices used to store, process or transmit data e.g. a laptop, or, a malicious act that erases, alters or destroys data, whether caused from within or outside your organisation
  • Breach of privacy legislation, e.g. Data Protection Act 1998, or other similar privacy laws elsewhere in the world, or
  • The negligent or inadvertent transmission of Malware (any code to erase, deny access to, corrupt, damage, disrupt any network or system or circumvent network security) to a third party
  • Unauthorised Access – meaning access to, and use of your computer system or network infrastructure by any person not authorised to do so, including your employees

A breach could have a major impact on your company. Policies are therefore designed to support you throughout the process with an aim to get your business back up and running as quickly as possible. Typically, you would have one point of contact throughout who would work with you, leading and managing the incident response, tailoring the recovery programme to your needs. The devil is in the detail. Key points to remember:

  • Cyber frauds are unlikely to be covered under fidelity wordings or under ‘crime’ extensions to management protection contracts
  • Cyber wordings on the cover are continually evolving – take care and read all the terms and conditions
  • Be cautious of ‘knowingly surrendered’ exclusions – these will really impact the cover where an insured has been duped
  • Be cautious of ‘social engineering’ exclusions or sub limits

 

Contact your TL Dallas broker for advice or speak to Mike Martin or Matt Smith on 01274 456500 or email mike.martin@tldallas.com/matt.smith@tldallas.com for further details.

 

*Source: The Cyber Security Breaches Survey 2017

Health & Safety – Early Plea Discounts: new guidance on sentencing

On 7th March 2017, the Sentencing Council for England and Wales published new guidance on sentencing offenders who plead guilty.

The new guidelines came into force on 1 June 2017 and can be accessed here.

In England and Wales, in accordance with s.144 of the Criminal Justice Act 2003, in determining what sentence to pass on an offender who has pled guilty to an offence, a court must take into account the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty and the circumstances in which this indication was given.

There is an almost identical provision to be found at s.196 of the Criminal Procedure (Scotland) Act 1995 in relation to Scottish proceedings.

The rationale for allowing “sentence discounting” is that early guilty pleas save court time, avoid witness distress and ultimately benefit the public purse.

Sentence discounting is not a new concept. It is rooted in statute, but its application by the courts both north and south of the border has raised issues in relation to what the court should take into consideration when dealing with an offender who pleads guilty and what discount should apply.

The purpose of the new guideline, which is applicable to England and Wales only, is to encourage early guilty pleas by making clear the stages in proceedings at which an offender can receive the various levels of discount available. It sets out that the maximum sentence discount of one-third is available only if the offender pleads guilty at the first court hearing. Offenders who tender guilty pleas after the first hearing are entitled to maximum sentence discount of one-quarter which will reduce on a sliding scale to a maximum of one-tenth if tendered on the first day of trial.

There are however some noted exceptions which include circumstances where it would be unreasonable to expect the offender to indicate a guilty plea sooner than was done. In such circumstances the maximum discount of one-third may still be applied, even if the offender did not plead guilty at the first opportunity. This may cover situations where further information, evidence, assistance or advice was required before a plea could be indicated. It is thought that this may cover more complicated criminal regulatory cases, including prosecutions under the Health & Safety at Work etc. Act 1974.

This is a welcome clarification of the law on sentence discounting in England and Wales and it will be interesting to see how this is applied. North of the border, the Scottish Sentencing Council is still working on drafting sentencing guidelines. Sheriffs frequently apply an early plea discount already but this is with much more discretion and flexibility.

Clearly, early legal advice in any near miss or incident is very important in order to mitigate the impact of any sentence.

If you have any questions, comments or concerns please get in touch with Malcolm Mackay, Partner, Brodies – malcolm.mackay@brodies.com or call 01224 392 274.

A Change to the Ogden Discount Rate: How to Mitigate the Premium Increases Ahead

In February 2017, the Lord Chancellor announced a significant reduction to the Ogden Discount Rate of 2.5%, to the revised level of -0.75%, causing UK insurer shares’ to plummet and sparking reaction from the insurance industry – who was expecting the rate to fall to around 1.5%.

 

So, what is the Ogden discount rate?

  • It is a calculation used by the courts to determine how much insurance companies should pay out to customers in cases of life-changing injury
  • When victims of life-changing injuries accept lump sum compensation payments, the actual amount they receive is adjusted according to the interest they can expect to earn by investing it
  • The Discount Rate is linked, by law, to returns on the lowest risk investments – typically index-linked gilts. The yield on these gilts, or Government bonds, has fallen dramatically since 2001

 

The reduction means that those suffering from serious injuries will receive significantly higher compensation payments than before. Mike Mitchell, Group Broking Manager at TL Dallas observes, “this change has caused insurers to revisit their reserves for existing claims to ensure they have sufficient funding set aside to meet future liabilities; Aviva has announced that this change has increased its Combined Operating Ratio from 94.9% to 106.3%, QBE has announced that it is setting aside an additional $160m in reserves.”

The effects of this will be that insurance that covers bodily injury – principally Motor, Employers’ Liability  and Public Liability – will need to be re-priced to ensure the premiums generate adequate funds. Furthermore, some insurers may well choose not to underwrite these classes of business, so there may also be a contraction in the market supply. The net effect is that premiums will inevitably go up and insurers will become more selective.

Gary Foggo, Health & Safety Consultant at TL Dallas, commented, “now is the time for companies to proactively review their risk management procedures, as well as risk transfer solutions and claims defensibility.”

To combat price increases, businesses will need to demonstrate and evidence how well they manage their risks to ensure they are ‘top of the underwriter’s pile’ come renewal. Firms with resilient and demonstrable health and safety procedures (which drive attitude, behaviours and culture) will be in a stronger position to lessen the knock-on effects.

The first step to controlling risk in the workplace is hazard identification. Thereafter, it is down to control measure implementation and the effective documentation of both. He adds, “it is impossible to eliminate all risks and prevent every accident, but when an accident does occur it is vital a company has the resources available to minimise the effect; that processes are robust; and that documentation is available to defend the claims.”

As part of the process of risk management, businesses should also be considering risk transfer: working with their broker to explore whether their limits of cover and sums insured remain adequate, given the potential change in exposure as the revised Ogden Discount Rate takes effect.

What should you do?

Speak to your broking team. Companies should get support from a qualified risk management professional who will work with you and your broker to review your internal processes and advise on a relevant approach to ensure a safe workplace and proactively manage claims when they do occur.

If you would like to discuss this matter further, please contact our Health & Safety Consultant, Gary Foggo – gary.foggo@tldallas.com or call 0131 322 2641.

The Insurance Act 2015 – Duty of Fair Presentation

The Insurance Act 2015 (TIA 2015) took effect on 12th August 2016, described by UK Government as the ‘biggest reform to insurance contract law since the Marine Insurance Act (MIA) of 1906’. The latter contained provisions, which entitled insurers to avoid cover for non-disclosure and terminate for breach of warranty. TIA 2015, on the other hand, modernises how insurers approach commercial insurance policies that are entered into (or are amended) from the new legislation date.

TIA 2015 has created a new ’duty of fair presentation’ and will apply to all insurance contracts worldwide that are subject to English law when arranging your insurance. This means you and your insurance provider have an obligation to:

  • Disclose material facts that you know or ought to know about the risk
  • Disclose sufficient information in a reasonably clear and accessible manner to put a prudent insurer on notice that it needs to make further enquiries to reveal such material circumstances
  • Not make a misrepresentation


There is a continuing duty for you to disclose all material facts when arranging your insurance and to disclose any changes in material facts when renewing and/or during the lifetime of the policy.


The onus is on you.

A material fact is information an insurer would regard as likely to influence the acceptance and assessment of your risk proposal. If you are in doubt as to whether to disclose certain information, our advice is to do so – share/disclose anything you think may be relevant. The onus is on you.

Providing you fulfil your obligations under the new legislation you can expect some positive outcomes in return as TIA 2015 imposes increased responsibility upon insurers to behave fairly and reasonably when you make a claim.

It is worth noting that if it can be shown you have made a deliberate or reckless failure to disclose issues of relevance insurers may avoid the policy.

We’re here to help.

Don’t let any of the above burden you or create uncertainty about how your insurances will be affected. TL Dallas are on hand to help and if you have any concerns please get in touch.

The Insurance Act 2015 can be viewed in full at legislation.gov.uk

 

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Duty to Warn

Duty to Warn describes the obligation of an experienced construction professional to warn others of defects in works – even if the professional isn’t directly responsible for that aspect of the works.

There are a number of well known cases demonstrating the courts attitude to Duty to Warn and demonstrating the cost to construction professionals who either ignored, or were oblivious to the risk.

How can a Duty to Warn be created?

There is no general duty to warn in English and Scottish law however, there are circumstances in which a duty can exist.

In it’s judgement on the case of Plant Construction Plc vs Clive Adams Assoc., the Appeal Court offered the following conclusions:

  • There will usually be an implied (sometimes explicit) contractual term that a contractor shall perform a contract using the skill and care of a reasonably competent contractor
  • The circumstances of a particular contract will establish the scope of that obligation
  • Where an experienced contractor is involved and the design of the works is not only defective, but obviously dangerous there is an “overwhelming case” that the contractor is bound, as part of its obligation, to use appropriate skill and care to warn a client of dangers it perceives 


The court left open the question of circumstances where the defective was not obviously dangerous.

Other considerations could include:

  • Contracts will often place a higher obligation on the contractor than reasonable skill and care, even so, there is an exposure through both the Tort of Negligence and the implied term in the Supply of Goods and Services Act 1982.
  • The more experienced, skilled or specialist the contractor/construction professional is, the higher the obligation may be considered to be.
  • Contractual requirements to inspect, monitor, supervise, etc. create a contractual requirement of, not only a Duty to Warn, but to oversee the rectification/remedy of the defect.
  • New Engineering Contracts (NEC) require both parties to give early warning of anything which may delay the works or increase costs. If the contractor fails to comply with this obligation they will be unable to claim for additional costs/delays following any subsequent compensation event.
  • The Construction (Design and Management) Regulations 2015 require that the principal designer ensures the works are carried out in a way that minimises Health & Safety risks.
  • The Health & Safety at Work Act 1974 creates obligations to warn both employees and third parties about the dangers present in a place of work.

What should you do?

  • Understand your exposure to Duty to Warn, through the mechanisms listed.
  • Educate your staff to reinforce their understanding of their responsibilities, and create a simple process for them to raise concerns promptly with senior management and in turn other contractors and employers.
  • As a minimum, warn of all dangerous or potentially dangerous defects.
  • Make sure that your company’s warnings to clients or other contractors are clear, unambiguous 
and in writing. If your warning isn’t strong enough the courts may still consider you failed in 
your duty!
  • Check that your insurance broker understands Duty to Warn and your potential exposure to 
it.
  • Always seek to buy Professional Indemnity Insurance with a specific Duty to Warn extension.

For further details and advice please contact our construction specialist, Mike Mitchell – mike.mitchell@tldallas.com or call 07496 888411.

 

Alistair Dean, Partner, Anderson Strathern, comments,

‘The concept of a duty to warn is an important one, but in some respects an undeveloped area of the law. The cases, which mainly come from the English courts, demonstrate that it is not easy to succeed in actions which allege that construction professionals breached their duty to warn. There are two legal consequences of failing to discharge a duty to warn. One is in the possibility of a professional indemnity claim. The other is the possibility of a health and safety prosecution under the Health and Safety at Work Act 1974. The ‘rules of the game’ are the same in either case, and I would suggest that the underlying rationale is the application of common sense, and an abundance of caution. If a construction professional, during the course of an inspection/site-visit, is concerned that the works are being carried out in such a way that there is a health and safety risk, that should be immediately flagged up to all of the relevant parties. However, as is demonstrated by the case of Goldswain -v- Beltec Ltd in 2015, a structural engineer (and by extension any designer) is entitled to assume that their drawings will be followed by the appointed contractor, and there is no obligation to supervise the works to ensure such compliance.’

alistair.dean@andersonstrathern.co.uk

 

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Working airside? What is the worst that could happen?

 

Do you ever carry out work at an airport, either land side or airside? High value buildings and aircraft, large, concentrated volumes of people – what is the worst that could happen?

Whether you are re-laying part of the runway or simply installing a cooker hood in a departure lounge restaurant, most standard Public Liability (PL) insurance policies will automatically exclude airside work, and many will even exclude any work at an airport.

 

The usual solution

The solution offered by many insurance brokers is to arrange a stand-alone Public Liability policy to the limit of indemnity required by the airport (£50M for BAA airports). This is usually provided through schemes run by the like of Marsh, Willis etc. and policies are relatively cheap.

 

The important questions

These policies will cover you while you are undertaking your work (Public Liability), but what cover does it give you after you have left the airport (Products Liability)?

If your completed works are defective and cause injury or damage, which insurance (if any) do you think will respond?

The solutions are simple and cost effective.

 

To find out more, or discuss any other Construction insurance issues, please contact Mike Mitchell, mike.mitchell@tldallas.com or call 07496 888411.

Invisible Risks

In the face of increasingly sophisticated risks or ‘invisible’ incidents, businesses and individuals are finding they need to consider new areas of protection in addition to the more traditional risks that they would normally insure against, such as fire or flood.

These additional areas of risk include:

 

Commercial Crime/Financial Fraud

Recent statistics (RSA) suggest that between 25-33% of all companies suffered some sort of fraud in the last year – either a direct financial loss or misappropriation of assets.

It’s not only large companies that need to protect themselves: nearly 50% of those targeted had fewer than 1,000 employees and the average size of the loss was around 1.3% of turnover.

As with all risks, prevention is better than cure: just as you should have a robust fire risk assessment, we suggest you carry out a fraud risk assessment. This would identify any threats and put in place systems to detect fraud and prevent it wherever possible.

Even if all these systems have been implemented but the worst still happens, insurance is available. This will not only cover your loss, but also any expenses relating to the loss, such as lost management time, any reputational damage and lost business opportunities.

Policies are also available that cover both fraud by employees and third parties.

 

Cyber/Data Breach

Statistics from Garter Inc suggest there are currently 6.4 billion devices connected to the internet and this will increase to 20.8 billion by 2020.

Such explosive growth poses risks to both individuals and businesses, with the risk of cyber attacks and data breaches increasing exponentially.

Insurance solutions to this threat are now more sophisticated – there are products on the market that can cover your business for first and third party losses, costs of PR and reputation management and loss of income following a cyber-attack.

 

To discuss this in more detail, please contact your nearest TL Dallas branch.

Health & Safety breaches – the true cost

 

We take a look at the Sentencing Council’s revised Definitive Guideline to Health & Safety Breaches and increased fine levels.

Safety professionals have for some time spoken of the hidden (and uninsured) costs of accidents at work, but recent changes in the Sentencing Council’s Definitive Guidelines for Health & Safety Breaches (effective from 1st February 2016) are already resulting in huge increases in the levels of punishments (a very visible and direct cost) being handed out by the courts.

Fine in cases after February 2016 can be ten times larger than before.

 

ORGANISATIONS – HEALTH & SAFETY BREACH FINES

In the new Guidelines, fines are calculated through a number of considered stages:

  • CULPABILITY
    • Very High – deliberate breach or disregard to the law
    • High –Serious or systemic failure within an organisation to address risks to Health & Safety, typically characterised by ignoring concerns of employees or others, failing to implement changes following other incidents, or allowing breaches to subsist over a long period of time
    • Medium – Systems were in place, but these were not sufficiently adhered to or implemented
    • Low – Failings were minor and occurred as an isolated incident
  • HARM
    • The level of harm or potential harm that an offence creates
    • How many people (employees and members of the public were exposed)
    • Whether the offence was a significant cause of actual harm
  • COMPANY SIZE
    • The financial standing (in terms of Annual Turnover or equivalent) of the offending company
  • REVIEW
    • Adjustment based on how proportionate the fine is, taking into account profitability of the company, savings they made through taking safety shortcuts, risk of the business closing as a result of paying the fine
    • Consideration of ancillary orders (remediation of specified failings, compensation etc)
    • To illustrate, take an example of a company with a £12M Turnover, deemed to have ‘Medium’ culpability in an employees death (or even a ‘near-miss’ that could have resulted in death) would now be looking at a fine in the range £300,000 to £1,300,000 before the review/adjustment stage. 
    • If the same company was deemed to have High Culpability, that range increases to £600,000-£2,500,000.
    • If you compare these figures with a 2014 case against the significantly larger Thames Water for a workers death, which resulted in them paying £361,000 in fines and costs, you can see the revised Guidelines will result in hugely increased fines being paid.

 

INDIVIDUALS – HEALTH & SAFETY BREACH FINES

The revised Sentencing Council’s Definitive Guidelines also address the penalties against individuals for Health & Safety breaches.

‘Individuals – Go directly to Jail – Do not pass GO, do not collect £200!’

Culpability and Harm are judged in the same way as the company fine, but the individual would also have to make a declaration of their finances.

Using the example given above, for Medium Culpability the penalties faced by the individual are described as “Band F fine or high level community order – 1 years custody”.  Note that the starting point is set at 6 months imprisonment and a Band F fine means 500% to 700% of the individuals weekly income.

 

CORPORATE MANSLAUGHTER

Utilising a two level view of Culpability and Harm (High and Low), the Corporate Manslaughter sentencing also uses the same company size categories as is applied to offending company fines for Health & Safety breaches.

There is still an adjustment/review process, but continuing the example of a death at a company with a £12M Turnover, a High Category offence would result in a fine in the range £1.8M to £7.5M, with a starting point of £3M.

There is much debate amongst Safety professionals about the overall impacts of the new Sentencing Council’s Definitive Guidelines, but one thing is clear, if there is any weakness in your Health & Safety regime (whether injury results or not) the financial price for getting it wrong is increasingly severe.

 

The Sentencing Council’s Definitive Guide can be found here, but for further details and advice, please contact your nearest TL Dallas branch.