This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
Summary and implications
The construction health and safety rules changed on 6 April 2015. The changes are intended to reduce bureaucracy and simplify existing regulations but some significant changes have been made to duty holders' roles that have potentially more draconian sanctions for non-compliance.
The changes are introduced by the Construction (Design and Management) Regulations 2015 (CDM 2015) replacing the Construction (Design and Management) Regulations 2007 (CDM 2007), which were revoked on 6 April 2015.
The wording used in CDM 2015 has changed: “must” has replaced “shall” throughout CDM 2015 and the revised drafting now specifically links to the wording in the Health and Safety at Work etc. Act 1974, which carries heavier sanctions than CDM 2015 (or CDM 2007).
The following key points highlight changes that all duty holders, but particularly “clients”, should be mindful of.
Client's duties
CDM 2015 places a heavier responsibility on the client to check and review its health and safety arrangements throughout the life of the project. It can no longer appoint its CDM co-ordinator and principal contractor and happily assume they are performing their duties adequately. Under regulation 4(5) a client must ensure that:
“(a) before the construction phase begins, a construction phase plan is drawn up by the contractor if there is only one contractor, or by the principal contractor; and
(b) the principal designer prepares a health and safety file for the project…”.
Regulation 4(6) provides that the client must check that the principal designer and principal contractor are complying with their duties. This revised wording ensures an ongoing involvement by the client.
The client must also “take reasonable steps to satisfy themselves” that any designer or contractor it appoints has the “skills, knowledge and experience… necessary to fulfil the role that they are appointed to undertake”. A client may also look at the organisational capability of their appointee, not just the individual (regulation 8).
The legislation does not specify the relevant skills, knowledge and experience but over time the industry will hopefully develop its own guidance. In January this year the Construction Industry Training Board (CITB) produced useful guidance for clients, principal designers, designers, principal contractors, contractors and workers but, although useful, the HSE is not involved in this and will not comment on or endorse it. This guidance is available free online.
What is the trigger point for appointments?
The trigger point for the appointment of a principal designer and principal contractor by a client is that “there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time” (regulation 5(1)). It is no longer whether or not a project is notifiable. This means that on the majority of projects a principal designer and principal contractor must be appointed by a client. The appointments must be in writing and if a principal designer or principal contractor is not appointed then the client must fulfil these roles itself.
Principal designer
The most fundamental change in CDM 2015 is the replacement of the role of CDM co-ordinator with the principal designer.
The principal designer’s role is one of risk management and prevention; they are to plan, manage, monitor and co-ordinate the pre-construction phase to ensure that the project is carried out without risk to health or safety. They are also responsible for the preparation and updating of the health and safety file.
A principal designer should be the first appointment on any project. The HSE’s intention is that designers take responsibility for health and safety early on in the project and manage it from the outset. A principal designer should have design experience, knowledge of the project and control over the health and safety aspects of any design.
As mentioned above, the client must make a judgement as to the capability of the principal designer but in addition, the designer itself must not accept an appointment to a project unless they have the appropriate “skills, knowledge and experience”.
Transitional provisions
CDM 2015 contains transitional arrangements to deal with construction projects that started before CDM 2015 came into force. The HSE has summarised such arrangements as follows:
- where the construction phase has not yet started and the client has not yet appointed a CDM co-ordinator, the client must appoint a principal designer as soon as practicable;
- if the CDM co-ordinator has already been appointed and the construction phase has started, the client must appoint a principal designer to replace the CDM co-ordinator by 6 October 2015, unless the project comes to an end before then;
- if the CDM co-ordinator has already been appointed but the construction phase has not started, the client must appoint a principal designer to replace the CDM co-ordinator by 6 October 2015, unless the project comes to an end before then;
- in the period it takes to appoint the principal designer, the appointed CDM co-ordinator should comply with the duties contained in Schedule 4 of CDM 2015. These reflect the duties placed on CDM co-ordinators under CDM 2007 rather than requiring CDM co-ordinators to act as principal designers, which they may not be equipped for;
- pre-construction information, construction phase plans or health and safety files provided under CDM 2007 are recognised as meeting the equivalent requirements in CDM 2015;
- any project notified under CDM 2007 is recognised as a notification under CDM 2015; and
- a principal contractor appointed under CDM 2007 will be considered to be a principal contractor under CDM 2015. (www.hse.gov.uk).
Notifications
The threshold for notification of a project to the HSE has changed slightly. Any project which is scheduled to:
(a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or
(b) exceed 500 person days,
is a notifiable project (regulation 6(1)).
The effect of a project being notifiable is now less significant because all the obligations in CDM 2015 apply equally to notifiable and non-notifiable projects other than the obligation to notify the HSE if a project exceeds the above threshold.
Summary and implications
- A client’s duty to check and review its health and safety arrangements throughout the life of a project has increased.
- A client has a duty to fulfil the roles of both principal designer and principal contractor itself if it does not appoint others to undertake these roles.
- A client must ensure its appointees have the appropriate skills, knowledge and experience.
- A principal designer should be appointed as early as possible on a project and should be in a position of control over the health and safety aspects of any design.
- If projects are already underway consider the effect on its existing appointments:
- Ensure that you are ready because the sanctions for failure to comply with CDM 2015 can be serious and can incur criminal liability.
For further information on CDM regulations, click here
