There has been little regulatory scrutiny of the role of the principal designer since it was introduced by the Construction (Design Management) Regulations 2015 to replace the role of the CDM Co-ordinator. The HSE has tended to focus its investigations on contractors and principal contractors when assessing whether any material breaches of health and safety law have occurred following serious construction site incidents. However, the HSE's current business plan and a recent conviction of a principal designer suggest this is all about to change.

The HSE's Business Plan for 2019/20 makes it clear that its priorities for the construction sector will be to focus on:

  • SMEs carrying out refurbishments.
  • Principal Designers - embedding the requirements of the CDM Regulations 2015 through targeted inspections of duty holders especially those providing principal designer services.
  • The prevention and control of occupational lung disease (particularly asbestos and dust) and musculoskeletal disorders.

It is essential that principal designers are ready for such increased focus from the HSE. If they have not already done so, they should review how they are complying with their duties under the CDM Regulations. Principal designers will need to be able to demonstrate to inspectors how they have planned, managed, monitored and co-ordinated health and safety in the pre-construction phase, including how they have liaised with the principal contractor to achieve this.

Failure to do so could result in improvement notices being served or, in more serious cases, a prosecution, even if nobody has been injured.

The HSE's increased focus on principal designers is illustrated by the recent conviction of a principal designer, Paul Humphries Architects Ltd. Earlier this year, this company pleaded guilty to breaches of Regulation 11(1) and 11(3) of the CDM Regulations 2015. The prosecution arose following an inspection by the HSE at a site where a large timber frame extension was being built onto a residential home. The HSE found that there was a risk of fire spread associated with the construction of the timber frame extension, putting 80 residents of the home at risk of injury or death due to the possibility of fire spreading into the home. The HSE found that the principal designer had failed to perform its duties and failed to consider the risk of fire-spread to vulnerable residents when designing the timber frame extension work. The principal designer was fined £20,000 and ordered to pay costs of £6,039. It is worth noting that nobody was actually injured in this incident, but those convicted of such an offence can still receive significant fines for creating a 'risk of harm'.

The above developments suggest that the HSE is now taking greater account of the health and safety implications of a principal designer's approach to the design during the pre-construction phase and how the design influences whether a project is delivered in a way that secures health and safety.

Principal designers should avoid complacency following HSE investigations arising out of serious site incidents. This will often involve close scrutiny of contractors and principal contractors in the initial months of the investigation, who may well be trying to divert the regulator's attention elsewhere. It may be many months before the HSE becomes interested in the principal designer. It is crucial that principal designers take any incidents or investigations seriously and ensure they retain all relevant evidence to demonstrate how they have complied with their duties.

Chris Baranowski is a Partner in DAC Beachcroft's Regulatory team and specialises in advising all CDM duty holders facing investigations for corporate manslaughter and health and safety offences.

This article was first published in Construction News.

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