A new construction for the CDM Regulations

13 February 2015


Serious and fatal injuries to workers in construction, though much improved since the introduction of the Construction (Design and Management) Regulations (CDM Regulations) in 1994, remain a concern. According to the 2013/14 HSE Statistics, construction accounts for 5% of Britain’s employees but for 31% of fatal injuries to employees and 10% of reported major/specified injuries.

Following consultation on the current CDM Regulations (2007) in June 2014, revised CDM Regulations are expected to be implemented on 6 April 2015 (the CDM Regulations 2015). In January 2015, the HSE published draft guidance on the CDM Regulations 2015 to help anyone with duties under the Regulations prepare in advance.

The impetus for further change stems from a recommendation in Professor Löfstedt’s report (Reclaiming Health and Safety For All: An Independent Review of Health and Safety Legislation) that regulations should aid clarity and reduce bureaucracy. The new CDM also need to implement the Temporary or Mobile Construction Sites Directive.

This article considers some of the key changes to help you future-proof your projects in-line with the changes proposed in the published draft guidance on the CDM Regulations 2015.

The CDM Co-ordinator role

The CDM Co-ordinator role will be replaced with that of the ‘Principal Designer’ which will include an element of influence over design. The discharge of this function will sit within the project team rather than be outsourced.

Employers will need to consider whether the Principal Designer can provide advice without any potential conflict of interest and discharge the pre-construction co-ordination function without recourse to third party advice in respect of issues outside their normal design role. If not, the cost will be borne by the Client and will need to be considered at the outset.

The transitional provisions in the draft CDM Regulations 2015 provide that CDM Co-ordinators may continue working on a project until the earlier of six months from when the CDM Regulations 2015 come into force or the end of the existing project.

Practically, for new projects where a CDM Co-ordinator is appointed, the contract should contain terms that deal with termination when the law changes. For existing projects, notice periods in CDM Co-ordinators’ contracts should be checked and employment advice taken to ensure effective termination if required. According to the draft CDM Regulations 2015, the longstop date by which a principal designer must be appointed is 6 October 2015.

Guidance

The HSE intends to replace the current Approved Code of Practice (ACOP) with a set of industry guidance targeted at the five dutyholders under CDM Regulations 2015 and one for workers. The guidance is aimed principally at smaller projects which statistically have a higher risk of serious injury and death occurring.

The legal status of the ACOP will be revoked when the CDM Regulations 2015 come into force and the new guidance will not have legal status in the same way. However, the draft guidance is practical and helpful in that it is specifically targeted at each duty holder to ensure that they understand their role in preventing injury and ill-health during the construction process.

The notification requirement

The CDM Regulations 2015 will change the current notification of projects requirements to those expected to last ‘more than 30 days and engage more than 20 workers simultaneously’.

Accident statistics support the HSE’s assertion that small and medium sized projects are responsible for the majority of deaths and accidents in the industry. Given the proposed changes this change seems strange as it may mean that there will be less hands-on involvement of the HSE on the sites deemed most at risk.

The explicit ‘competence’ requirement

Initially, the existing detailed competence requirements were to be replaced with a more general framework, based on information, instruction, training and supervision.

Following consultation, the HSE has amended its approach and the draft CDM Regulations 2015 now refer specifically to the basis of ‘competence’ which requires the necessary “skills, knowledge and experience.” Organisational capability will be required in respect of organisations.

While there is advantage in having scope for interpretation within a set of regulations, in respect of health and safety, certainty of obligations and compliance is preferred. The competency requirements as drafted will provide a level of clarity and ensure that the industry is able to assess whether construction teams have what is needed to maintain health and safety standards.

Employers on all sites should ensure that all work is scoped and risk assessed, sub-contractors are appointed for their level of skill and experience, that all work on site is coordinated rather than each job in hand being looked at in isolation, and that operatives work within their skill base and are supervised. Employers should also be aware that, if the construction project is not notifiable at first, there may be subsequent changes in scope so that it fits the criteria for notification.

The proposed changes are subject to ministerial and Parliamentary scrutiny which could lead to further amendments or delay to their introduction.

If the CDM Regulations 2015 are introduced in April 2015, the construction industry will need to ensure continued compliance to avoid risk of prosecution. Risk assessments, permits to work, and safe systems of work will remain vital tools to ensure safety on all sites.

This article was originally published in Planning & Building Control Today on 30/01/15. It considers some of the key changes to the new CDM Regulations 2015.


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