Wragge Lawrence Graham & Co's regulatory litigation specialists provide further information on the proposed Construction (Design and Management) Regulations 2015 and suggest some actions that those embarking on construction and building work should be considering in advance of April 2015.
The policy objectives behind the Construction (Design and Management) Regulations 2015 (CDM Regulations 2015) are to maintain or improve worker protection, simplify regulatory practice, discourage bureaucracy, implement European Directives and meet better regulatory principles.
The CDM co-ordinator role
The Health and Safety Executive (HSE) proposes to replace the CDM co-ordinator role with a new role ascribed to the 'principal designer' which will include an element of influence over design. The discharge of this function is to sit within the project team rather than be outsourced to an external contractor.
From the consultation, it seems industry stakeholders were generally supportive of the approach and there was a feeling that pre-construction co-ordination should be seen as an embedded skill set within the project team rather than an 'extra'.
The lack of a transitional period between the old and new regulations could cause difficulties for projects where a CDM Co-ordinator is appointed. The HSE has therefore proposed to allow CDM Co-ordinators to continue working on a project until the earlier of six months from the coming into force of the CDM Regulations 2015 or the end of the existing project.
The notification requirement
The current requirement is for notification to the HSE whenever a project is expected to last (a) more than 30 days, or (b) will involve more than 500 person-days of labour.
The HSE proposes to change (a) to 'more than 30 days and more than 20 workers simultaneously'.
The Approved Code of Practice (ACOP)
The HSE intends to replace the ACOP with a suite of tailored guidance, written in plain English, with clear guidance on interpretation and material that is particularly aimed at small businesses.
This proposal was met with little support in the consultation which has forced the HSE to reconsider its approach. It is well recognised that the ACOP is both unwieldy and difficult to apply but there is a recognition that the legal status of the ACOP makes it more authoritative, and therefore more effective than mere guidance.
The existing ACOP will no longer have legal status once the CDM Regulations 2007 are revoked. As such, there will be an interim period where the CDM Regulations 2015 are not supported by any specific guidance aside from general HSE and industry guidance. However, following the consultation, it appears that the HSE is now considering a shorter signposting ACOP which will have legal status and will be supported by HSE and joint HSE/industry guidance.
The explicit 'competence' requirement
The construction industry has previously raised specific concerns in respect of the detailed and prescriptive competence requirement set out in Regulation 4 of CDM Regulations 2007. However, the consultation revealed that the HSE's proposal to create a more general and less prescriptive legal framework for competence, backed by comprehensive guidance, was not well supported as participants worried how the drafting would deliver reform in practice.
It appears that many in the industry equate competence with training and qualifications and, whilst there is support for reform, the HSE will revisit the drafting of this provision to improve clarity.
The proposed CDM Regulations 2015 provide that a 'client means any person for whom a project is carried out'. In order to comply with European Law, where the CDM Regulations 2015 apply, they will now apply to domestic clients as well as commercial clients.
In reality this will mean that the limited duties which would otherwise fall to domestic clients can be discharged by the contractor or principal contractor, or if the client agreed, the designer.
We anticipate that the CDM Regulations 2015 as described above will come into force in April 2015. This should prompt the following actions from those embarking on construction and building work in advance of April 2015:
- Consider whether the principal designer will be in a position to provide advice without any potential conflict of interest and discharge the pre-construction co-ordination function without recourse to third party advice (and that its appointment contains the relevant services). If not, the cost will be borne by the client and will need to be considered at the outset.
- How easy is it to terminate your CDM Co-ordinator? For any new project where a CDM Co-ordinator is appointed, the employer should retain that person on terms that deal with termination of their appointment when the law changes.
- Do you need a notification? Consider whether the project will involve 'more than 30 working days and more than 20 workers simultaneously' or whether it will involve more than 500 person-days of labour.
- Ensure domestic clients are made aware of their duties and that these can be discharged by the contractor or the designer.
- Following the change in competency requirement, there will be a need to show that individuals and organisations are capable of, and motivated to, deliver work safety. It remains to be seen how this can be demonstrated in practice.