The legal implications of ignoring the CDM15 RegulationsCDM Services
Has anyone been prosecuted in Construction since CDM15 was introduced?
The Health and Safety Executive (HSE) have analysed information relating to potential breaches in Health and Safety Regulations on construction projects. The HSE act as the police service for all of the industry and provide enforcement notice data (prohibition and improvement notices) on their website. This information is available for all stakeholders to view and remains accessible.
Contractors must be aware that HSE Inspectors can attend site whether invited or uninvited. There may be a planned blitz on specific issues, for example, the HSE in Liverpool have recently carried out planned spot checks on several refurbishment projects in educational facility sector. Inspectors can also carry out unannounced inspections following concerns raised by site workers or members of the public.
Who has responsibilities under Health and Safety Regulations?
Health and Safety law places duties on employers and workers to consider their own safety and that of others. The principal law is the ‘Health and Safety at Work Act 1974’, with The Construction Design and Management Regulations 2015 (CDM15) relating directly to the Act. Clients, Principal Designers, Principal Contractors, Designers and the Self Employed each have responsibilities as duty holders for Health and Safety, some overlap, while others are specific to a particular group. The regulations work with strong direction and guidance and come in various forms including:
- Approved Codes of Practice;
- HSE Website;
- Various Trade Organisations and;
- Competent Advice.
Any individual or organisation that wishes to remain compliant with the law and avoid punitive measures and sanctions should use these resources.
If an organisation does not comply with CDM, or an individual within that organisation is identified as wilfully breaching any regulation, such parties should expect to be investigated and if the case is strong enough, will be prosecuted.
New sentencing guidelines introduced on 1st February 2016 introduced higher fines and prison sentences for anyone breaches the CDM regulations. These penalties can range from fines of up to ten million pounds or even imprisonment for up to two years for more serious breaches.
While some might argue that regulation alone is not the answer to the problem of Construction Health, Safety and Welfare, Health and Safety law continues to reinforce all we do in construction. The law is the law, and duty holders will be judged upon whether they have interpreted their role and carried out their responsibilities correctly. Regulations can be complex, and construction companies and design practices can put heavy resources into interpreting the requirements of the law correctly, but without competent guidance, this could be wasted time and money no matter how well-intentioned.
Who will be prosecuted?
It is no secret that while the HSE carry out inspections for breaches of the CDM regulations across all project sizes and companies, it is the larger sites that most attention is being paid to and inspected. Larger construction sites mean more tiers of supply chain with a pyramid of potential breaches and perpetrators. In an age where funding to the HSE is at a relative low and ‘Fee for Intervention’ (FFI) costs make up the deficit, some cynics may say that to ensure the HSE’s survival in its present form they should follow the money. The truth of the matter is SME’s, and sole traders can also be targeted at any time.
It is a fact that the larger the project, the greater the numbers of people employed and consequently more people could be harmed if poor controls on site are in place. These larger employers are punishable by very large fines under the current sentencing guidelines. Large fines will make headlines in trade press and if the company is large enough, national media outlets. This public shaming could act as a deterrent to smaller companies, but that said, there is still an element of the construction industry that will say “that will never happen to us”. Filtering through the lists of Enforcement Notices shows that is not necessarily the case with SME’s and Sole Traders being named as the recipient of the notice. Even when fines are scaled down to reflect the turnover of a business, fines for serious breaches could easily liquidate an otherwise thriving business.
A recent search of the HSE’s List of Enforcement Notices found that there were 3306 notices served under CDM15. 2335 of these were improvement notices, the rest being prohibition notices. Lack of Principal Contractor, insufficient Welfare arrangements, and omission of a Construction Phase Plan are typical reasons for serving improvement notices. The majority of prohibition notices were for potential breaches of the Working at Height Regulations.
It might be the case that the operative on site is identified as carrying out an illegal action thereby putting themselves or others at risk. If an investigation is carried out, the inspectors will always work up the hierarchy of command to establish who is responsible for that operative.
So, even if the breach was a willful deviation by an individual, the company (or in the case of a larger supply chain companies) will all have their day in court if a serious breach resulting in death or serious injury occurs.
Yes, the individual may have taken on a risk knowing the dangers, but the organisation will be required to explain how competency is measured and whether the vetting was robust enough.
A self-employed contractor, a white van man for example, before to the changes seen in CDM15, had never previously been expected to produce a Construction Phase Plan. They are unlikely to have the HSE’s web page bookmarked to keep up with changes in legislation, so it is the responsibility of those higher up the supply chain to ensure that these smaller working groups are involved in the cultural change.
The whole project team should buy into Health and Safety as an essential part of their business model. CDM can be very difficult to understand to the average worker on site if it is not presented in a format that all workers, at all levels of responsibility and ability, can understand. Several methods can be employed to get workers to adopt CDM without having to understand every part of the CDM Regulations. Strong management, enthusiastic supervision and regular refresher training will all contribute to a safer and healthier construction environment.