New Lighting Products MEPS (Britain)

The UK government is consulting on changes to the 2021 Regulations on lighting products, to put in place more stringent minimum energy performance standards (MEPS) from late 2023.

The existing rules are set out in The Ecodesign for Energy-Related Products and Energy Information (Lighting Products) Regulations 2021. The 2021 Regulations were, anyway, enacted after 31st Dec 2020 and are not part of the REUL project; but the new MEPS proposed will be more stringent than those applying to lighting products circulating in the EU.

The current deadline to end the circulation of CE marked lighting products on the GB market (31st December 2024) would be brought forward to the date the new GB requirements come into effect.

The consultation is here. The consultation ends on 4th April 2023.

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.

EU Law Revocation (Britain)

Yesterday 22 September ’22, the UK government introduced its bill to revoke and reform en masse (by 31 Dec 2023) retained EU law and domestic subordinate law documents (statutory instruments – Regulations) that draw their power from sections of the 1972 European Communities Act (specifically section 2(2) or paragraph 1A of Schedule 2).

The revocation and reform bill is here.

I will be outlining in the next (September) Email Alert how we will deal with this in Cardinal Environment EHS Legislation Registers & Checklists (Britain, England, Wales and Scotland).

Re OHS – the impact will be felt on Equipment Regulations (not LOLER), and Product Regulations (including obviously UK REACH and safety data sheets). Also the Working Time Regulations.

But Equipment Use Regulations, COSHH, DSEAR, Carriage of Dangerous Goods, the Management Regulations and the Workplace Regulations will be unaffected.

Re ENV – the impact will be substantial in Waste. Also EIA and Habitats and Species Regulations will be re-written (I had already written about this in the blog). Note the Office for Environmental Protection (England) has an investigation underway into the EIA, SEA and Habitats Regulations. This link gives access to written evidence to the Levelling Up and Regeneration Bill Committee, which gives further information.

ODS and F-Gas similarly will require new domestic law.

31st December 2023 is the sunset date written into the Bill.

We will set up a document tracking list, with traffic light colours, as we did with the Brexit law changes that operated from 1st Jan 2021 (the Brexit Consolidated Law list).

It is expected that the relevant government departments will commence review of each affected instrument, and that “reformed” domestic law will be enacted. The new document tracking list will identify progress, to customers of our Cardinal Environment EHS Legislation Registers & Checklists. The Email Alerts will Alert of enactment of new instruments.

This is a complex area. If there are further developments, for example to the sunset date, then I will issue further blog posts.

The EU Law revocation extends to all parts of Britain, but ENV legislation is delegated, so variations might emerge (particularly on timescales).

If you have questions, and you are a client, please send your questions to me by email. Questions asked on this blog post will not be answered.

The above is NOT a full description of the instruments affected. Clients will have the document tracking list inserted in their systems in Jan 2023. The specifics of how we will handle this will be in the September Email Alert (as mentioned above).

UKCA marking (Britain)

The UK Conformity Assessed (UKCA) mark is the new mandatory mark on a large number of manufactured goods to indicate that they conform to legislation enacted in Westminster for Britain (GB).

Businesses have until 1 January 2023 to start using UKCA marking which replaces EU marking.

On 20th June 2022, the then UK government announced that conformity assessment activities undertaken by EU bodies before the end of 2022 would be considered as the basis for UKCA marking in 2023.

That UK government announced that legislation on this would be brought forward before the end of 2022 to enable manufacturers to apply the UKCA mark on these products without the need for re-testing.

The purpose of this new legislation (if enacted) would be to allow CE marked products that are manufactured and imported into the UK by the end of 2022 to be sold, without the need to meet UKCA requirements. This would remove the current need for retesting and recertification for products that are imported whilst the UK recognised CE requirements. 

The 20th June 2022 announcement also states the UK would continue to accept spares onto the GB market which comply with the same requirements that were in place at the time the original products or systems they were being used to repair, replace or maintain were placed on the market.

Legislation would also be brought forward to extend current labelling easements to allow important information and other UKCA markings to be added to products using a sticky label or an accompanying document.

In addition, the 20th June 2022 announcement states that manufacturers of construction products under AVCP system 3 – such as radiators, sealants and tile adhesives – whose products are tested by an EU notified body before 1 January 2023 would be able to obtain a UKCA mark without having to retest through a UK-approved body.

The 20th June 2022 announcement is here.

The business sectors that these measures apply to include:

• aerosols

• electrical and electronics

• equipment for explosive atmospheres

• pyrotechnics

• gas appliances

• lifts

• machinery

• outdoor equipment

• personal protective equipment

• toys

• pressure equipment

• civil explosives

• recreational craft

There are different rules for:

• medical devices

• construction products

• cableways

• transportable pressure equipment

• unmanned aircraft systems

• rail products

• marine equipment

Live Animal Exports Ban (Britain)

Being able to ban live animal exports is considered a Brexit win (although note EU Animal Health rules also moved on since 31st Dec 2020). Animal welfare is a devolved policy area. The UK and Welsh governments consulted on the matter, and the Scottish government consulted separately. The UK and Welsh governments now publish their consultation response, and this is in line with proposals by the Scottish government – here.

The proposals will not apply to journeys under 65km. The proposals are –

* A ban on the export of livestock (cattle, sheep, goats and pigs) and horses from England, Wales and Scotland for slaughter and fattening. Exports for slaughter and fattening from England, Wales and Scotland will be prohibited whether the animals originate from or are travelling through England, Wales and Scotland.

The ban will apply to all exports of livestock and horses where an animal is exported to the place of destination in order to be fattened for subsequent slaughter.

The ban will be achieved via the Animal Welfare (Kept Animals) Bill (Clause 42) – here.

The proposals also cover maximum journey times, temperature and comfort during travel and other matters. These proposals could be achieved via Statutory Instruments or guidance, or both.

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

EU Eco-design & labelling rules (Britain)

The UK government has decided to introduce EU Ecodesign and Energy labelling rules for lighting products in Britain in 2021 (if there is parliamentary time).

The UK government decision is set out here, and here.

In the EU from 1 September 2021, the existing rules under Regulation (EU) No 874/2012 will be repealed and replaced by new energy labelling requirements for light sources under Regulation on energy labelling for light sources (EU) 2019/2015. 

The new EU rules will use a scale from A (most efficient) to G (least efficient), the new labels will give information on the energy consumption, expressed in kWh per 1000 hours and have a QR-code that links to more information in an online database.

In the EU, with the new regulation, most halogen lamps and the traditional fluorescent tube lighting, which are common in offices, will be phased-out from September 2023 onwards.

Note : the UK government earlier decided to rescale the energy labels for some energy-related products from 1 March 2021, following the EU. The legislation is not yet adjusted. The Office for Product Safety and Standards (OPSS) issued technical notices, and the UK government updated the information on gov.uk and responded to email queries from businesses. I blog posted at the time about this change. The updated guidance is found in the Brexit Guidance List on subscribers’ Cardinal Environment Limited EHS Legislation Registers & Checklists.

Note (2) : the EU rules will apply in Northern Ireland by virtue of the Northern Ireland Protocol.