UK REACH Extension (UK)

Last year (2022) the UK Government consulted on extending the registration deadlines, from the current deadlines, the first of which is as soon as October 2023.

The UK REACH Regulation contains transitional provisions that allow companies to submit initial ‘notification’ data in order to continue trading and then subsequently provide the full registration data. The transitional provisions apply to those that were registrants, downstream users or distributors under EU REACH before UK REACH came into effect. The current deadlines for completing this transitional registration process, depending on tonnage and hazard profile of the substance, are set down in Article 127P of UK REACH, and the first of these is 27 October 2023.

The UK Government published its consultation response in November 2022. It did agree to extend the deadlines. But the legislation to put this into effect is not yet issued.

We will notify subscribers to Cardinal Environment EHS Legislation Registers & Checklists, in the monthly Email Alert, as soon as this legislation has been enacted. In the meantime, questions about the deadlines should be addressed to the HSE.

The November 2022 UK Government consultation response is here.

Please note: the UK REACH legislative instrument (a Brexit amended EU-era document) is currently on the list for deletion in the REUL Project. However, we now understand that the REUL Project will remove a smaller number of EU-era documents than the current Bill wording requires, and possibly the sunset clause could itself be removed. We await the UK Governments tabled amendments to the REUL Bill, which will return to the Lords 15/17 May for its Report stage, for the detail on this.

Holiday Entitlement Consultation (Britain)

The UK government is consulting on changes to holiday entitlement for part year and irregular hours workers. The proposal is to amend the Working Time Regulations 1998, which give effect to pre-31 Dec 2020 EU law, to remove the effect of a recent Supreme Court judgment, and in effect to move away from EU law in this respect.

In July 2022, the Supreme Court handed down its judgment on Harpur Trust v Brazel. This case concerned the calculation of holiday pay and entitlement of a permanent part-year worker on a zero-hours contract.

The judgment held that the correct interpretation of the Working Time Regulations 1998 is that holiday entitlement for part-year workers should not be pro-rated so that it is proportionate to the amount of work that they actually perform each year.

Part-year workers are entitled to 5.6 weeks of statutory annual leave calculated using a holiday entitlement reference period to determine their average weekly pay, ignoring any weeks in which they did not work. As a result of the judgment, part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year.

The UK government disagrees with this approach, and proposes amending the Working Time Regulations to ensure that holiday entitlement reflect hours worked. The consultation is here.

The consultation closes on 9 March 2023.

EU Law Revocation (Britain) UPDATE

The Retained EU Law (Revocation and Reform) Bill (I posted about recently) is in Committee stage, and the Public Bill Committee (the relevant Committee) yesterday has asked for submissions to it – here.

You can see from the link, the purpose of the Bill is to sunset (remove from the statute book) certain types of law by end 2023. In particular, the Bill will completely overhaul a body of UK domestic law known as “retained EU law” (REUL). This is a category of law that came into being as a result of the UK exit from the EU. It includes both Retained EU instruments, and certain domestic laws that gain their authority in a particular way.

Note: when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline of 5.00pm on Tuesday 22 November.

As I have written in the last Email Alert to clients, we will commence listing the laws to be affected shortly, and this list will display on Cardinal Environment Limited EHS Legislation Registers and Checklists from Jan 2023 (earlier drafts will display earlier) and be subject to tracking through 2023.

A very considerable number of laws will be affected.

We expect most affected laws to be replaced with new laws, covering the same obligations. The tracking evident on Legislation Registers and Checklists will identify progress.

We do not expect that obligations will be removed altogether. If a law is removed without a replacement, we expect the obligations to be inserted by amendment into other pre-existing law, and the tracking will identify this.

Nonetheless, this is a complex process.

Substances of Very High Concern (UK REACH) (Britain)

UPDATE (17 February 2022) : authorisation decisions for time-limited use of SVHC are here.

The government (UKG) has today published its policy on how new chemicals will be added or existing chemicals removed from the Substances of Very High Concern candidate list (SVHC) that was fossilised as at the EU list on 31st Dec 2020. The policy paper is here.

When UK REACH came into force, all substances that were on the EU REACH candidate list were carried over onto the UK REACH candidate list. UK REACH applies in Britain, not Northern Ireland which follows EU REACH.

The UK REACH work programme for 2021-22 committed to assess those substances that have been added to the EU REACH candidate list since UK REACH came into force, to consider if it was appropriate to add them to the UK REACH candidate list.

To aid this assessment, DEFRA (UKG) and the Welsh and Scottish Governments agreed interim principles for including SVHCs on the candidate list in UK REACH:

1 Including SVHCs on the candidate list should be used to encourage substitution away from particularly hazardous substances.

2 A substance should not be proposed for inclusion on the candidate list unless it is a good candidate for the authorisation list.

3 Regulatory Management Options Analysis (RMOA), informed by calls for evidence, should be used to determine if inclusion on the candidate list is the correct route.

The Health and Safety Executive (HSE), with the Environment Agency (EA), used these interim principles to assess the substances that have been added to the EU REACH candidate list since UK REACH came into force. HSE and EA identified four substance groups as priorities for further assessment via Regulatory Management Options Analysis (RMOA):

• dioctyltin dilaurate, stannane, dioctyl-, bis(coco acyloxy) derivatives, and any other stannane, dioctyl-, bis(fatty acyloxy) derivatives wherein C12 is the predominant carbon number of the fatty acyloxy moiety

• 1,4-dioxane

• small brominated alkylated alcohols (SBAA)

• phenol, alkylation products (mainly in para position) with C12-rich branched or linear alkyl chains from oligomerisation, covering any individual isomers and/or combinations thereof (PDDP)

These RMOAs will recommend the most appropriate route for managing any identified risks from these substances. This may include these substances being added to the candidate list, but HSE and EA may make other recommendations.

The Defra Secretary of State, Welsh ministers, Scottish ministers and HSE can put a substance forward for inclusion on the candidate list. They can do so if they consider it fulfils one or more of the technical, hazard-based criteria to be considered an SVHC. HSE will then prepare a dossier on, and consult on, the proposed addition to the candidate list. The final decision on whether to add a substance to the candidate list is made by HSE (with the EA advising on environmental matters).

PPE Duty amendment (Britain)

The HSE has today (19th July) launched a consultation here, on proposed changes to the Personal Protective Equipment at Work Regulations 1992 (PPER). Consultation closes on 15th August.

Currently, employers have a duty to their ‘employees’ in respect to PPE – changes to the PPER will ensure this duty also extends to ‘limb (b) workers’, and will apply in England, Scotland and Wales.

In the PPER, PPE is defined as “all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects the person against one or more risks to that person’s health or safety, and any addition or accessory designed to meet that objective.”

This Blog does not extend to employment law, but note in Britain there are two main employment statuses for employment rights: ‘employee’ and ‘worker’. Employees are defined as limb (a) and workers are defined as limb (b) in the Employment Rights Act 1996 s.230: [we do not supply the ERA or advise on it]

..an individual who has entered into or works under– (a) a contract of employment; or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual. [my bold]

According to the HSE consultation document – Generally, limb (b) workers:

• carry out casual or irregular work for one or a number of organisation(s),

• receive holiday pay, but not other employment rights such as the minimum period of statutory notice, after one month of continuous service

• only carry out work if they choose to

• have a contract or other arrangement to do work or services personally for a reward (the contract doesn’t have to be written) and they only have a limited right to send someone else to do the work, for example, swapping shifts with someone on a pre-approved list (subcontract)

• are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly)

Specific PPE required and provided for in the below health and safety regulations is not part of this HSE consultation – PPE required in relation to:

• lead exposure – Control of lead at work

• ionising radiation – Work with ionising radiation    

• asbestos – Managing and working with asbestos   

• substances hazardous to health in the workplace (for example: chemicals, fumes, dusts, non-water vapours, non-water mists, nanotechnology, and/or gases) – Control of substances hazardous to health

• noise – Controlling noise at work

End of EU Pi-marked TPE in GB (Britain)

The UK government has today commenced consultation on the ending of recognition of EU Pi-marked TPE (transportable pressure equipment) in Britain.

The proposal is to amend the 2009 Carriage of Dangerous Goods and Transportable Pressure Equipment Regulations to require that, in future, TPE being placed on the GB market is conformity-assessed by:

• a GB-appointed body and affixed with a Rho marking

or

• a notified body established in Northern Ireland, affixed with a Pi marking plus the indication ‘UK(NI)’.

This would effectively end recognition of EU Pi-marked TPE in GB, although TPE already on the GB market before this amendment comes into force may remain in circulation.

The proposal is that this change will come into effect between 1 January 2022 and 1 January 2023.

The consultation invites comments on the impact of ending recognition of EU Pi-marked TPE in GB. The findings from this consultation will be used to inform a decision on when the amendment should come into effect.

The consultation is here. It is a short consultation that will run until 30 June.

Equal Pay Proposal (EU)

On 4th March, the European Commission presented a proposal on pay transparency – here.

The legislative proposal focuses on two core elements of equal pay:

(1) measures to ensure pay transparency for workers and employers, and

(2) better access to justice for victims of pay discrimination.

Further information is here.

NB: this Blog does not focus on Employment Law issues.

5th List of Occupational Exposure Limits (EU)

Directive 2019/1831 (amending Directive 2000/39/EC) establishes a fifth list of indicative occupational exposure limits (IOELVs) for chemical agents.

For any chemical agent for which an IOELV has been set at European Union level, Member States are required to establish a national occupational exposure limit value. They also are required to take into account the Union limit value determining the nature of the national limit value in accordance with national legislation and practice.

Member States must bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 20th May 2021 at the latest.

The Directive establishes limit values for the following chemical agents:

Aniline

Chloromethane

Trimethylamine

2-Phenylpropane (Cumene)

sec-Butyl acetate

4-aminotoluene

Isobutyl acetateIsobutyl acetate

Isoamyl alcohol

n-Butyl acetate

Cardinal Environment EHS Legislation Registers & Checklists will be updated shortly.

Workplace testing (UK-Covid)

Some employers and third-party healthcare providers may want to introduce their own internal testing programmes outside of NHS Test and Trace.

NHS Test and Trace is for those who display symptoms of COVID-19 or who have been advised to take a test by a medical practitioner or public service. Employer and third-party healthcare providers wishing to provide a test to staff must not advise individuals without symptoms to get a test from the limited supply offered by the NHS Test and Trace service, but may offer alternative private provision.

The government first published guidance on 10 Sept 2020.

The guidance was updated several times since, and on 26 Feb 2021 was updated –

Updated to reflect the ongoing evolution of private-sector testing. In particular, updated advice in relation to lateral flow device (LFD) testing, routes to access testing, and a more comprehensive supplementary annex for employers and third-party providers wishing to offer workplace testing for asymptomatic employees.

The guidance is here.

Note CE marking is replaced by UKCA marking. Information on UKCA marking is here.

Existing CE marked goods may continue to circulate on the GB market in 2021 under transitional arrangements.

CE marked goods may circulate in Northern Ireland under the Protocol, UKCA goods must be marked UKNI in the Northern Ireland market (see the UKCA marking link).

Drivers’ Hours (UK)

EU drivers’ hours and tachograph rules still apply to journeys between the EU and UK, or wholly within the EU or UK.

AETR (the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport) apply to journeys outside of the EU, including journeys involving Norway and Switzerland.

3 sets of rules could apply to a road journey:

* EU rules – here

A person must not drive more than:

• 9 hours in a day – this can be extended to 10 hours twice a week

• 56 hours in a week

• 90 hours in any 2 consecutive weeks

All driving carried out under EU rules must be recorded on a tachograph. And there are EU rules on breaks and rest.

* AETR rules – here

AETR rules are the same as the EU rules.

* GB domestic rules – here

GB domestic rules are not completely the same as EU rules (that was the case also before the UK exited the EU) and apply to most goods vehicles that don’t need to follow EU rules. GB rules apply in Britain. Separate domestic rules apply in Northern Ireland – here.

The rules that apply depend on:

• the type of vehicle being driven

• which country the vehicle is being driving in

If driving under the EU or GB domestic drivers’ hours rules, a person also needs to follow the working time rules – here.

The employer of drivers or mobile workers must also follow additional rules – here.

The collection of guidance links on Drivers’ Hours is here. Note the temporary relaxations for Covid.