On 6 October 2015, the Construction (Design and Management) Regulations 2015 (CDM 2015) come into full effect following a 6 month transitional period. It is essential that duty holders (both organisations and individuals) understand the scope of their duties and comply with them since any failings attract criminal liability and, as this article explores, potentially larger fines!
What was wrong with the old regime?
CDM 2015 will entirely replace the 2007 Regulations of the same name, which have been criticised on numerous levels since their introduction.
The impetus for a CDM overhaul came from various sources. First, the UK legally had to amend the Regulations in order to ensure the original EU Directive was properly implemented. Beyond that, the 2011 Lofstedt Report and the Coalition Government’s deregulation agenda which manifested itself in the “Red Tape Challenge” provided the real motivation for the change.
Research found that CDM 2007 encouraged an overly “bureaucratic” approach to safety management and had failed to provide a workable regulatory framework for smaller sites. Whilst large organisations were appropriately resourced to deal with the obligations of the regime, SMEs in the construction industry were failing to comply. Furthermore, “competence”, the cornerstone of CDM 2007, was poorly understood and assessment of it problematic with overall health and safety co-ordination often ineffective and inconsistent.
What are the objectives of CDM 2015?
The changes introduced by CDM 2015 reveal the following key drivers:
- Safety management needs to be simplified and targeted to enable a wider understanding of CDM and a greater level of success in its application
- The concept of “competence” has been poorly understood and assessment of competence difficult to administer. CDM 2015 therefore moves towards a system whereby the foundations of competence are identified (training, experience, knowledge and skills) in the hope this more specific approach will make competence checking easier to achieve
- Clients have a huge influence on projects, from budgeting and programming to engaging the project team. Due weight is given to this vital role in CDM 2015 with all Client responsibilities now mandatory and central to effective management
- The role of the CDM Co-ordinator (“CDMC”) was not always introduced to projects early enough leading to a disjointed approach to safety management
- Health and safety management on smaller sites is not working. Sites where fewer than 15 people are working now account for more than two thirds of fatal accidents in the construction industry; a disproportionate figure on any assessment
- Domestic projects are to be encompassed within the ambit of CDM to ensure the UK accurately transposes the original EU Directive (92/57/EEC), which specifically included domestic work, whereas our legislation has always specifically excluded these projects. CDM will therefore apply to domestic projects where more than one contractor is to be engaged, thus recognising the huge industry in domestic construction and renovation currently largely unaffected by the specifics of CDM
Roles and responsibilities
CDM 2015 places responsibilities on the following people:
- Clients (see regulations 4 – 7)
- Principal Designers (see regulations 8 – 12)
- Principal Contractors (see regulations 8 and 12 – 15)
- Designers (see regulations 8 – 10)
- Contractors (see regulations 8 and 15)
The key roles are played by the Clients, Principal Designers and Principal Contractors with the CDMC role being abolished altogether and its responsibilities being placed with the new Principal Designer remit.
The removal of the CDMC addresses a perception that CDMCs were often appointed too late, missing the opportunity to embed health and safety within the ethos of the project from the outset. The HSE believes that placing these responsibilities with the Principal Designer deals with this concern, ensuring pre-construction co-ordination is incorporated from day one. However, question marks remain over the appetite and competence of Designers to fulfil this role and indeed many wonder whether they will simply resort to external advice (from current CDMCs) in discharging this role in any event.
Of real interest is the increased burden placed on Clients, whom it was felt were so influential in the life of a project that their obligations should be made mandatory. Accordingly, the drafting of CDM 2015 represents a stark contrast to its predecessor, which required Clients to “take reasonable steps” to discharge their duties; instead, they now “must” do so.
The non-delegable tasks allocated to the Client also includes filing the F10 form notifying the HSE of the project where it is either scheduled to last longer than 30 days and have more than 20 workers working simultaneously or where it will exceed 500 person days. The fact of notification is no longer a significant threshold since CDM 2015 applies wholesale where a project has more than one contractor, and there are no increased duties imposed upon those working on a project where an F10 has been submitted.
Whilst CDM 2015 will apply to domestic projects, the Client in those situations is not required to discharge the key management duties outlined in regulation 4 or indeed to notify the project to the HSE where that threshold is met. Instead, those duties “must” be carried out by one of the professional appointees on site.
What does competence mean?
CDM 2007 placed huge emphasis on the competence of the appointees who were not to be engaged unless “competent” and who were not to accept the role unless they too agreed they were “competent”. However, the concept of competence was not defined and little guidance could be discerned from the supporting Approved Code of Practice (“ACoP”) leading to concerns about the real tenets of the notion of competence and countless hours of expert evidence before the Courts.
CDM 2015 looks to address this by identifying the planks of competence; skills, knowledge, training, experience and (in the case of a business) organisational capability. These must be present in those appointed to a project to enable the roles to be discharged in a manner that secures the health and safety of those involved in or affected by the project. The supporting guidance (see below) provides useful practical examples to assist with the assessment of competence, representing a significant improvement on the unsatisfactory position under CDM 2007.
What happens if you don’t comply with CDM 2015? It is essential that those involved in construction work understand what their role and duties are under CDM 2015 since non-compliance attracts criminal liability and penalties. Breaches of CDM 2015 can be prosecuted in the Magistrates’ Court and Crown Court. Both can impose unlimited fines whilst, for individuals, Magistrates can order up to six months’ custody and Crown Court Judges up to two years’.
Of particular interest to duty holders will be the anticipated guidelines from the Sentencing Council which are due to be issued in November this year and will likely be used by the Courts in early 2016. We envisage the final guidelines will largely follow those consulted on earlier in the year – if that is right, the final guidelines will represent a wholesale change to sentencing health and safety breaches which will result in much bigger penalties for larger businesses. For example, for a large organisation which has deliberately committed the most serious type of health and safety offence, the draft guidelines (which propose tariffs and starting points) recommend a starting point of GBP 4 million with a range of GBP 2.6 million to GBP 10 million that the sentencing court can operate within. Significantly, for particularly large organisations, the guidelines state “It may be necessary to move outside the suggested range to achieve a proportionate sentence”.
Now that CDM 2015 is fully in force, and with such eye watering fines potentially at stake, it is essential businesses and individuals understand what their roles are under CDM 2015, that they comply with their duties, and they are able to demonstrate how they have met their obligations.
So what guidance is available to assist you?
The HSE has issued guidance on CDM 2015 and this is freely available to download on the Executive’s website. Unlike previous incarnations of CDM, which were supported by an ACoP, CDM 2015 is the subject of legal guidance (within the HSE’s “L” series).
As part of the drive to achieve a more focussed approach, the Construction Industry Training Board has published a series of targeted guidance documents written by members of the Construction Industry Advisory Committee. This suite of documents covers:
- Principal designers
- Principal contractors
Each booklet provides clear summaries and bullet points relevant to the particular role in question and avoids the need for many involved with projects to navigate the Regulations themselves and the HSE’s lengthy guidance.