UK: Replacing The Construction (Design And Management) Regulations 2007 (CDM 2007)

CDM 2007 has so far regulated and managed work place health and safety on construction sites. The proposed Construction (Design and Management) Regulations (the new CDM Regulations) will revoke and re-enact with modifications CDM 2007. Please note these rules are not in existence at present. The following sets out what will be the position under the new CDM Regulations, which will come into force in April 2015.

The new CDM Regulations will implement the requirements of the EU Directive 92/57/EEC on minimum safety and health requirements at temporary or mobile construction sites. The Health and Safety Executive or HSE (the organisation responsible for ensuring/enforcing health and safety rules in the UK) considers that the new CDM Regulations will simplify the existing regulations, reduce paperwork, and will improve work place protection and health and safety standards on small construction sites.

How will this affect the client?

The 'CDM Co-ordinator' will cease to exist and this role will be replaced with the 'Principal Designer'.

The CDM Co-ordinator is the consultant who currently advises and assists a client undertaking a project in performing its duties under CDM 2007. The consultant coordinates health and safety aspects of design, liaises with the project team and the contractors, maintains the health and safety file and deals with pre-construction information. Under the new CDM Regulations the role of the CDM Co-ordinator will cease to exist and instead there will be a new role, that of a 'Principal Designer' (PD).

The PD will also be a member of the client's project team and is defined in the new CDM Regulations as the designer in control of the pre-construction phase (the PD will plan, manage and monitor this phase). An example would be a lead architect undertaking such a role along with its pre-construction design obligations. Contrast this of course with the CDM Co-Ordinator who has no design obligations.

For the client this will mean negotiating a form of appointment with the architect (or other lead designer in the project team) to include their PD role. The same will apply where a contractor undertakes design, for example under a design and build contract. The appointment of the PD is likely to be more cost effective, simply because the client will not be required to enter into another appointment separately with a CDM Co-Ordinator. However, whilst the CDM Co-ordinator is an independent position designed to protect the client's interests, it remains to be seen how a PD will operate effectively in an integrated/dual role as designer and health and safety champion. We therefore expect to see provisions in the relevant appointment which obliges the consultant to act independently when it carries out its PD role.

How will this affect the contractor?

There will be reciprocal responsibility between the 'Principal Contractor' (PC) and PD to liaise as appropriate for the duration of the project and, in particular, regarding any information which may affect the planning and management of the pre-construction phase. It is therefore in the PC's interest to engage with the project at the earliest opportunity and begin a collaborative working relationship. However, it is difficult to see how a PC appointed following the pre-construction phase can retrospectively provide key information to the PD. In these circumstances, PC's should carefully review the pre-construction information when preparing for work on site to ensure all potential hazards and health and safety issues are adequately dealt with from the contractor's perspective.

The construction phase co-ordination duties will remain with the PC under the new CDM Regulations. However, as for the PD, the new CDM Regulations does not make any provision for an independent CDM Co-ordinator to protect the client's interests throughout this phase. In practise, the PC will take over the mantle of health and safety champion from the PD when entering the construction phase and will operate in a dual role in much the same way as the PD during the pre-construction phase. The contractor will be responsible for ensuring that changes in design through the construction phase comply with health and safety legislation. PC's should therefore expect to see their duties in any professional appointment expanding to account for this role and it is likely the professional appointments will require the PC to act independently when undertaking this role.

A contractor's 'competency', is an important consideration for contractors and the industry alike. The word itself is not defined and conventionally the industry has struggled with this concept – is it to be measured as an output of training, or by the number of safety cards held by a contractor? With some 300 cards from over 40 certification schemes with little to no mutual recognition between them, contractors can find themselves ensnared in red tape. A benefit to contractors will be the proposed simplification of the competency rules under the new CDM Regulations. There are suggestions for a more general and less prescriptive legal framework for competence backed by guidance. However, HSE in its consultation paper puts the burden on the industry to 'show leadership' and to develop approaches to ensure that both the individuals and organisations it engages can deliver work safely. HSE believes that replacing the existing competence requirements is appropriate, but it is still unclear whether the current red tape is a symptom of the existing rules or wider factors. If the latter, then the responsibility reverts back/stays with the industry to define the requirements for 'competency'.

The new CDM Regulations will apply to all clients including domestic clients

The new CDM Regulations states that a domestic client is a client for whom a project is being carried out which is not in the course or furtherance of a business of that client. Therefore, if the client is a home owner and is having construction works carried out at the client's home then the client will no longer be exempt from the regulations.

There is some relief for the client – the client can appoint a PD if the client wishes, but the default position under the new CDM Regulations allows for the client's duties to fall to the contractor appointed for the project or the formally appointed PC where there is more than one contractor. Assuming that 'contractor' means 'trade' any project with more than one trade on site (which will be most projects) will require a designated PC. The HSE estimates that the new threshold criteria for appointing a PC will increase the number of projects on which the regulations will apply as an additional one million projects per year.

HSE have been keen to state that the regulations will be addressed in a proportionate manner in relation to domestic clients, and that the majority of small domestic projects will see no change to how the projects should be managed for health and safety. We cannot confirm what 'small' is at present as we anticipate that this will be set out in any guidance that HSE produce. For those contractors with CDM compliant health and safety processes already in place the extension of the new CDM Regulations to domestic projects will have very limited impact. Smaller contractors and tradesmen that have previously worked only on domestic projects may struggle to follow the new regulations and implement them fully. Under the new CDM Regulations it is the responsibility of the client to ensure that the PC complies with their health and safety duties, however there is no indication in the current draft of the new CDM Regulations of how compliance is to be achieved, so look out for further updates from us as we monitor the situation.

What else has changed?

• The client will have a standalone/independent obligation to notify – The client will need to notify HSE if construction works on the site will last longer than 30 working days and have more than 20 workers working simultaneously or the project exceeds 500 person days.
• Duty to appoint a PD (for the pre-construction phase) and principal contractor (for the construction phase) – such a duty is triggered where there is (or it is reasonably foreseeable that there will be) more than one contractor on site. This requirement is separate from the client's duty to notify. HSE intends to provide guidance to ensure that this requirement is sensibly and proportionately applied for small projects.
• The client will have simplified and tailored guidance available on the new CDM Regulations - The Approved Code of Practice (ACoP) guidance currently produced by the HSE will see changes, to a new shorter signposting ACoP, complemented by guidance (including sector specific guidance).
• A written health and safety plan will be required for all projects at the construction phase – this requirement will include 'small' projects and the domestic projects that were previously exempt from the CDM regime. Maintaining a written health and safety plan could be onerous for small projects and it remains to be seen whether the proportionate application of the rules will extend to this element.

What about existing projects?

• Where the client has a project which began before the new CDM Regulations came into force, the client must appoint the PD and the principal contractor as soon as is practicable once the new rules have been implemented. Transitional provisions will be considered further and finalised in consultation with the industry.
• A previously appointed principal contractor who the client may have appointed will need to comply with the new rules once they have been implemented.

What are the consequences of CDM 2007 breaches?

• The HSE enforces the CDM 2007 under the Health and Safety at Work etc. Act 1974 (the Act). This Act sets out the offences (s.33) which can result in criminal liability – for example for a failure to discharge duties of an employer to an employee, by a body corporate, a director, manager, secretary or other similar officer of the body corporate who consented or connived or neglected an act can be guilty of an offence. This can include a fine and/or imprisonment. The amount and duration depend on whether the case is dealt with in the Magistrates or the Crown courts. Therefore, beware, CDM breaches are not to be taken lightly!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.