Ordinarily you can expect a specialist to shoulder the blame if you have appointed them to do some work and things go wrong. However, this is not true for businesses commissioning construction work.
If your business is having building work done, including repair and maintenance, you need to be aware that failure to discharge the enhanced burden imposed by new construction regulations risks a criminal conviction soon with vastly increased penalties and a direct claim for personal injury damages.
The Construction (Design & Management) Regulations (CDM) were updated in 2015 (CDM 2015). But many businesses still do not realise that their own obligations were significantly increased in 2015. This was quite deliberate. To quote the HSE: “The client has a major influence over the way a project is procured and managed... CDM 2015 makes the client accountable for the impact their decisions and approach have on health, safety and welfare on the project.”
More prosecutions of construction clients are expected for two reasons. Firstly, unwitting businesses will simply fail to discharge the enhanced burden. It will be no defence to say the business relied on advice from its builder or architect.
Secondly, the HSE will continue to target building work. Historically, it has concentrated its enforcement efforts on contractors and, occasionally, designers, with prosecutions of CDM clients being rare. However, a recent HSE investigation campaign on refurbishment sites notably coincided with the end of the CDM 2015 transitional period. The HSE found 46% of sites below standard and notably included the businesses commissioning the building work in follow-up enforcement action.
Businesses should also be aware that after 1 February 2016, if they breach CDM 2015 they will face dramatically higher penalties (against which they cannot insure themselves).
Under new sentencing guidelines, fines imposed on companies will be be based on turnover, with the level of culpability and risk determining the starting point and range of penalty. Sole traders may go to jail.
While breach of CDM 2015 does not automatically give rise to a claim for personal injury damages, evidence of a breach or conviction may be evidence of negligence or breach of some other statutory duty. Businesses can expect their insurers to deal with a civil claim, and businesses that are sued must expect their insurance premiums to rise.
Ignoring duties under CDM 2015 is a risk for businesses. With the warning that completion of the following steps should not be taken as guaranteeing a defence, there are some actions that businesses can take to protect themselves:
- Adjust your attitude. Businesses must stop thinking that the sole responsibility for avoiding risk lies with their builders. The Health and Safety Management System set up by the London Organising Committee for the Olympic Games 2012 (LOCOG) may be regarded as the gold standard of a construction client’s attitude. Wanting to create a risk free environment, LOCOG developed a clear framework in advance which was designed to be helpful to workers rather than just pay lip-service to a legislative requirement.
- Make sure whoever is dealing with the builders in your business is familiar with CDM 2015, the HSE Guidance and even the Construction Industry Training Board guidance documents.
- In the planning stage, take a moment to imagine the project under way. If there will be more than one trade on site at any time, appoint a principal designer and make one contractor the principle contractor. If in doubt, consider appointing a consultant to advise generally. Ensure the principal designer creates a health and safety file.
- Before making any appointments of contractors, designers or consultants, ensure that the potential appointee has “skills, knowledge and experience (and in the case of an organisation) the organisational capability to manage health and safety risks”. The HSG suggests ways that necessary checks can be made and sets out a number of points to be covered under these “management arrangements”, suggesting that a business’s brief can cover them. Getting this document signed by contractors is a good way to evidence clear apportionment of responsibilities.
- Include information about any health and safety risks, e.g. asbestos containing materials or fragile roofs, in the pre-construction information that you shared with appointees.
- For all construction jobs, obtain a construction phase plan (CPP).
- Notify the relevant enforcing authority if necessary.
- Check on the work at key milestones in the project. Retain the construction brief, the CPP, the H&S file and any updates and copies of contractors’ insurance policies. Keeping a paper trail is a useful check as the project proceeds and may help defend criminal or civil proceedings.
- Before work starts, check your insurance policy and contract documents. Does your insurance policy require you to obtain a copy of your appointee’s insurance policy? Does it provide adequate legal costs protection to you if things do go wrong? Your insurer will thank you if you contracts provide for indemnities that include personal injury liabilities.
- Above all, do not be tempted to undertake construction work yourself. Lack of expertise obviously increases the health and safety risk and any prosecution may include additional charges. Any sentence may be increased by the aggravating feature of cost-cutting at the expense of safety.