The Construction (Design and Management) (CDM) Regulations, which come into force on 6 April, will affect all construction work taking place in the UK. The regulations give 'clients', meaning anyone for whom a construction project is carried out, a greater role while the work is carried out. Even work carried out on behalf of homeowners will be caught by the new rules, although it is commercial firms that will be affected most. Most client duties for homeowners will pass as soon as they have appointed a contractor for the work.
Once in force, the regulations will require commercial firms to appoint a principal designer and principal contractor whenever any work involves more than one contractor - even where the work involved is very limited and over quickly. The scope of 'construction work' under the regulations is wide, covering everything from major infrastructure projects like HS2 to installing a new office shower. Those who get it wrong may face prosecution; with the potential for unlimited fines and even, in the case of individuals, imprisonment if convicted.
The regulations replace the existing CDM coordinator role with that of a 'principal designer', responsible for the planning, management and coordination of the project's pre-construction phase. The client must appoint a principal designer whenever a project of any size involves more than one contractor – for example, if a plumber and an electrician are appointed to install an electric shower.
Clients appointing others on projects will also be subject to a new general requirement to take reasonable steps to satisfy themselves that the appointee has the skill, knowledge and experience and – if the contractor is an organisation – capability necessary to fulfil the role. This replaces the 'competence' requirements included in the previous CDM Regulations. The current threshold at which clients must notify construction work to the Health and Safety Executive (HSE) will also change, resulting in fewer projects being notified.
Through the new regulations, HSE has tightened its oversight of the role played by commercial firms in their own construction projects. In its draft guidance on the new regulations, HSE said that clients are important because they have a major influence over how a project is procured and managed. HSE believes that its new focus is justified because of the perceived impact that client decisions and approach have on health, safety and welfare during construction work.
From 6 April, firms will be expected to make suitable arrangements to ensure construction work on their behalf is carried out without risks to health and safety, so far as is reasonably practicable. This will include providing relevant pre-construction information such as asbestos surveys to each designer and contractor on the project as soon as possible. They will also have to ensure that the contractor, or principal contractor if applicable, has drawn up a construction phase health and safety plan for all projects including routine maintenance.
The real challenge for these firms will not be on large construction projects, but rather in routine building maintenance tasks. The regulations will still apply and a construction phase health and safety plan will be necessary – and, whenever more than one contractor is involved, then both a principal designer and principal contractor will have to be appointed. The HSE guidance warns that if a client fails to appoint either of these roles then the client must carry out their associated duties instead.
The draft HSE guidance suggests that commercial clients should adopt a proportionate approach to the regulations, taking into account the size of the project and the particular risks involved. However the approach that the HSE, as the body tasked with enforcing the regulations, will take to proportionality in practice will remain uncertain until the regulations are up and running or further guidance is provided.
Chris Hopkins is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law.com.