Author: Gillian Birkby
This article was previously published in RICS Building Surveying Journal.
Gillian Birkby examines the legal implications of Health and Safety Executive proposals on changes to the Construction (Design and Management) Regulations with an eye to how they will work in practice.
The Health and Safety Executive’s (HSE) aims in updating the CDM Regulations 2007 include improving worker protection, health and safety on smaller construction sites and discouraging bureaucracy. Where possible, it has implemented the government’s policy of reducing regulation, but at the same time incorporated the European mobile sites directive.
The CDM drafters over the years have struggled with the desire to keep the regulations reasonably short, while recognising that a one-size-fits-all approach can never be satisfactory for every type of construction contract.
There are two further factors: HSE has suffered a severe reduction in its budget, in common with other government departments; and second, it has always tried to work on the basis of consensus, with regulations broadly acceptable to the industry and so more likely to be implemented. This results in a dilemma for HSE; so how have the competing factors been dealt with in the draft?
Improving worker protection
All current duty holders are still in place, except the CDM coordinator (CDMC), who is replaced by a principal designer. It is anticipated that this function will be carried out by one of the existing designers (the next issue of Building Surveying Journal will explain the role in more detail). HSE anticipates that a principal designer, responsible for health and safety in design, will produce a more integrated approach to risk management, particularly during the pre-construction phase, although this phase will often last well into the construction period itself.
The employer’s obligation to inform the contractor at tender stage of the time allowed for the mobilisation period (and therefore what type of welfare they should allow for in their tender) has been dropped from the proposed regulations.
For smaller construction sites, HSE has a two-pronged approach. First, simplifying the regulations and reducing their length will encourage smaller businesses to read them. Secondly, guidance will be produced on what needs to be done to comply with the law, for particular sectors of the industry. This will include templates for construction phase plans for common high-risk small projects, such as roof replacement and loft conversion.
The Approved Code of Practice (ACoP) will be discontinued. Currently, if in the event of death or personal injury the dutyholder can show they have complied with the ACoP, this will be considered sufficient if they face prosecution. If they have attempted to comply with their obligations in a different way, they will have to prove that those alternative methods produced the necessary health and safety standards. ACoPs are therefore of immense assistance to the construction industry. Indeed, HSE acknowledges that the CDM ACoP has been used to persuade reluctant senior management that certain steps need to be taken to achieve the appropriate health and safety standards.
While recognising all this, HSE would prefer that businesses focus on the outcomes they want to deliver, rather than relying on the ACoP. It remains to be seen how helpful the guidance is, whether it is expressly endorsed by HSE, which would significantly enhance its status, and whether the guidance will be useful for significant sections of the industry without overwhelming it with too many different guidance documents.
The EU Commission has criticised the UK government for not implementing the mobile sites directive fully, particularly in relation to domestic clients. However, on domestic projects such as loft conversions, the contractor and designer already have CDM duties, even if the client does not.
The proposed regulations now impose on domestic clients the duties of management, provision of information and ensuring a construction phase plan is drawn up, and then almost immediately require the contractor to fulfil these client duties. One can sympathise with HSE’s need to incorporate the mobile sites directive in this respect, but it is not clear how a domestic client will recognise that there is more than one contractor working on site (when different rules will apply) or that there are certain regulations that the contractor or a designer should be explaining to the client. Many small businesses currently still fail to understand that even on small works for domestic clients they have CDM duties.
Appendix 4, produced at the industry’s request, has resulted in an overly bureaucratic approach to competence assessment, requiring too much time to be spent filling in pre-qualification questionnaires. HSE will abandon Appendix 4 in favour of requiring contractors to be provided with appropriate information, instruction, training and supervision. In the event of an accident, there will be a presumption that there has been lack of information etc, but health and safety legislation already works on the basis that those accused of breaching it are required to prove that they have in fact complied.
HSE considers the many schemes for establishing competence as a burden on the industry with little benefit. They would like to see an amalgamation of these various schemes, but cannot enforce that by regulation.
The abolition of the CDMC is another attempt to reduce bureaucracy, with HSE implying that the coordination functions are added to another role in the pre-construction team.
The notification threshold will also be changed. HSE proposes a client duty to notify projects lasting longer than 30 working days and on which more than 20 workers are working simultaneously, or exceeding 500 person days. This no longer acts as a threshold triggering additional duties as in CDM 2007, thus avoiding the complexity of the current structure. Fewer projects will need to be notified, which is estimated to save £3m per year, but will mean that HSE has less information about smaller projects.
Currently, the client will be required to appoint a principal designer as soon as possible after the regulations come into force. This may change; it would certainly be helpful for the smooth running of existing projects if there was a run off period for the move from CDMC to principal designer.
Consultation ended on 6 June. The final text of the regulations is expected in early October, giving the industry six months’ notice of the new requirements.
Gillian Birkby, Head of Construction, Fladgate LLP (email@example.com)