Although the number of fatalities in the construction industry has been fluctuating, there is no consistent trend in the last four years. According to the Health and Safety Executive (HSE), 2.2 million people work in Britain’s construction industry, making it the country’s biggest industry and, as has been widely reported, one of the most dangerous. In the last 25 years, there have been over 2,800 fatalities with many more injuries or resulting illnesses.
The government has responded by a major revision of the Construction (Design and Management) Regulations 1994 (CDMR 1994), introducing new regulations, which will have a significant impact on the industry and on the way new projects are controlled. The message from the HSE to employers embodied within the new Construction (Design and Management) Regulations 2007 (the Regulations) is to establish a clear command and control regime for construction type activities.
The main changes under the new Regulations are the replacement of the planning supervisor, whose role was largely ineffective, with the CDM co-ordinator and the shift of responsibility for health and safety responsibilities onto the party with the most influence – the client. Despite extensive debate on the Regulations, the HSE is convinced that this will lead to reduced red tape and bureaucracy, effective co-ordination between parties, the deployment of competent people and a focus on effective planning and management of risk.
The Regulations have a very wide application. They apply to all “construction works” which is very broadly defined and includes fitting out, maintenance, redecoration and cleaning works. The term also encompasses preliminary investigations and explorations (though not site survey).
A “client” is anyone seeking or accepting the services of another to be used in the carrying out of a project. This definition is wide enough to encompass small companies and one-off clients who may not even be aware of the Regualtions, yet they have to comply with specific and extensive duties.
Duties which apply to all projects
General duties include:
- Competence: duty holders must not appoint a CDM co-ordinator, designer, principal contractor or contractor unless they are competent to undertake the activity. The Approved Code of Practice (AcoP) defines competence as having:
(i) sufficient knowledge of the specific tasks to be undertaken and the risks which the work will entail; and
(ii) sufficient experience and ability to carry out the duties and to recognise any limitations and take appropriate action in order to prevent harm to those carrying out construction work.
- Co-operation and co-ordination: every duty holder must seek the co-operation of any other party involved in the construction work and those parties must coordinate their activities to ensure, as far as reasonably practicable, the health and safety of people carrying out the construction work.
- Prevention: every duty holder must adhere to the general provisions of prevention (see Schedule 1 of The Management of Health and Safety at Work Regulations 1999) including avoiding risks and evaluating the risks which cannot be avoided.
The Regulations also identify specific duties of certain duty holders. Examples include:
- Clients are required to check the competence and resources of all appointees.
- Designers are required to eliminate hazards and reduce risks during design.
- Contractors are required to plan, manage and monitor their own work and that of their workers and check the competence of all appointees and workers.
Duties for notifiable projects
There is an extra layer of duties in respect of projects which are notifiable to the HSE – i.e. projects likely to last more than 30 days or involving more than 500 person days of work. Most notably, the planning superviser is replaced by the CDM co-ordinator whose role has evolved to become a key adviser to the client and to manage the communication between the client, designers and contractors.
The client is under a duty to provide the designers and contractors with all information in its possession, or which is reasonably obtainable, that is relevant for each of them in ensuring health and safety (the preconstruction information). The obligation is strict in the sense that it is not information which the client reasonably thinks is relevant, therefore the client should undertake to disclose all information in its possession relating to the site, works, timing and any information in any existing health and safety file.
In respect of notifiable projects, a health and safety file is required which must contain the information necessary for the construction work to be carried out safely. It is the duty of the CDM co-ordinator to prepare and update the file as the project progresses, but duty holders have a duty to supply the information necessary to compile and update the file. Again on notifiable projects, the principal contractor must, before the start of the construction phase, prepare a construction phase plan, which effectively replaces the health and safety plan under the CDM 1994, but relates to ensuring that the work is properly planned and carried out safely.
Consequences of breach of the Regulations
Any breach of health and safety regulations may give rise to civil and criminal liability. Most prosecutions for breaches of health and safety legislation tend to be brought under the Health & Safety at Work Act 1974 and a successful prosecution can result in a fine of up to £20,000 and/or 6 months imprisonment if the matter is dealt with in the magistrates’ court or, the Crown Court can impose an unlimited fine and/or 2 years imprisonment. There are also powers for directors to be struck off for up to 15 years.
The Regulations apply to construction projects that were already in progress when they came into force. As an example of the transitional provisions in effect for such projects, if a planning supervisor or principal contractor has already been appointed under CDM 1994, they will be deemed to be the CDM coordinator or principal contractor, but they must ensure that they acquire the new competencies within 12 months, if they are not already competent.
- The ACoP should be read and followed. It has special legal status and if complied with, a court will be unlikely to find you at fault if you are prosecuted for a health and safety breach.
- All concerned, especially clients, need to consider their working practices and procedures. Practical compliance is not enough; procedures must be carefully documented in writing as evidence of compliance should anything go wrong during the project.
Moreover, procedures should be in place to monitor compliance and to ensure such compliance is ongoing.
- Everyone concerned in a project should understand the Regulations and how they affect their business. The HSE has commented that they will take a targeted and proportionate approach to enforcement focusing on deliberate breaches that lead to real risks. They have also stated that they will also be focusing on competence of the parties involved in the project.
- Employers, contractors and consultants should make sure that all the contracts, appointments and warranties cover the new duties and obligations contained in the Regulations and reflect the changes in terminology.
- An extensive due diligence process should be undertaken by clients at the very inception of the project to identify and obtain all the documents it needs to pass on to designers and contractors.
The Regulations force a rethink as to how projects are organised, planned and delivered. Taking a hands-off approach will fail to impress regulators from now on. Clients have to consider creating a carefully designed system to ensure that their wider obligations are discharged not only within the letter but the spirit of the law. With 50% of start-up companies apparently folding within their first year and a further 25% in their second (Business Link) coupled with the massive fines imposed on high profile companies such as Rail Track and Network Rail, can employers really afford not to plan and co-ordinate their work?