This article aims to focus on the Client’s/Employer’s and the Contractor’s duties and responsibilities in relation to the health and safety on construction sites and provides analysis of the relevant legislation.
Regulatory requirements relating to Clients
The Construction (Design and Management) Regulations 2015/51 (CDM 2015) came into force on 6th April 2015 and apply to all commercial and domestic construction and engineering projects in Great Britain.
Regulation 4 states that a Client, i.e. any person for whom a project is carried out, must make suitable arrangements for managing a project and ensure that the work on the construction site “can be carried out, so far as is reasonably practicable, without risks to the health or safety”. Schedule 2 of the CDM 2015 lists the minimum welfare facilities that the Client must arrange, including suitable and sufficient washing facilities in the immediate vicinity of toilets and any changing rooms. Such facilities must include a supply of clean, hot and cold, or warm water, soap and suitable means of drying. Washing facilities must also be sufficiently ventilated and kept in a clean and orderly condition. These arrangements must be maintained and reviewed throughout the life of the project. Should the project have more than one Client, they may agree in writing which one is to be treated as the only Client for the purposes of CDM 2015.
It is very important to note that the Client must take reasonable steps to make sure that the principal designer and principal contractor comply with their duties under these Regulations.
Regulation 8 of CDM 2015 imposes further, general duties on the Client, such as a duty to cooperate with any other party involved in a project in order to enable that person to fulfil their duties or functions. Furthermore, the Client must ensure that the information or instruction it provides pursuant to CDM 2015 is comprehensible and provided as soon as is practicable.
Although, CDM 2015 apply to domestic clients, their duties are transferred to the contractor and/or designer involved in the project. Notwithstanding this, all clients are required to ensure that, so far as is reasonably practicable, a construction site is made and kept safe for those persons that work there (Regulation 17(2)).
Regulatory requirements relating to Contractors
Under Regulation 12 of CDM 2015, Principal Contractor must ensure that the construction phase plan, which sets out the health and safety arrangements and site rules, is appropriately reviewed and updated throughout the project's life. The same is required in relation to the health and safety file, should it be passed to the Principal Contractor following the conclusion of the Principal Designer’s appointment.
Regulation 13 of CDM 2015 states that “the contractor must plan, manage and monitor the construction phase and coordinate matters relating to health and safety during the construction phase to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety.” Principal Contractor must consider the general principles of prevention in fulfilling those duties. Such principles include, but are not limited to, the following:
- avoid risks
- evaluate the risks which cannot be avoided
- adapt the work to the individual
- develop a coherent overall prevention policy
- give collective protective measures priority over individual protective measures
- give appropriate instructions to employees
Principal Contractor is responsible for coordinating contractors and overseeing the implementation of relevant health and safety requirements by the contractors. They must also ensure that the minimum welfare facilities, listed in Schedule 2 to these Regulations (see above), are provided at the construction site.
Under Regulation 14 of CDM 2015 the Principal Contractor must liaise with the workers regarding the effectiveness of health and safety measures and ensure that any matters which may affect the workers’ health, safety or welfare are communicated to them, or their representatives, in good time.
Under Regulation 15 a contractor must satisfy itself that the Client on the project understands that they have duties under CDM 2015, failing which they must not carry out construction work.
A contractor must also ensure that its work is carried out without risks to health and safety by planning, managing and monitoring its work and the work of its workers.
So far as reasonably practicable, a contractor must provide each of its workers with appropriate information and supervision to enable them to carry out their work without risks to health and safety including, for example, information on procedures to be followed in the event of serious and imminent danger to health and safety.
Enforcement of CDM 2015
An enforcing authority, such as the Health and Safety Executive or local authorities, can commence prosecutions for non-compliance with the health and safety laws. Prosecutions may be brought against individuals as well as bodies corporate. The Health and Safety at Work etc. Act 1974 provides that the following may be prosecuted for health and safety breaches:
- owners of premises used as a workplace
- anyone who caused another to breach health and safety legislation due to their act or default
- any director, manager, secretary of the body corporate who caused a business to breach health and safety legislation due to their consent, connivance or neglect
Parties involved in a construction project should also have regard to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which impose various restrictions and requirements on the owners, proprietors and managers of businesses.
Although the requirement to close premises and businesses does not currently apply to construction companies, such businesses must still observe the restrictions on gatherings, such as that gatherings of more than two people can only take place when it is essential for work purposes or to provide emergency assistance.
A breach of these Regulations is likely to be punishable by a fine, which could be imposed not only on the company itself but also its director, manager or other similar officer, should the breach be attributable to any neglect on their part or committed with their consent or connivance.
The restrictions and requirements imposed by the Coronavirus Regulations must be reviewed at least once every 21 days, with the first review being due by 16th April 2020.
Following the government’s recommendations on social distancing, the Construction Leadership Council published a 4 page code of practice to be followed on all construction sites during Covid-19 (“Site Operating Procedures – Protecting Your Workforce”). The guidance seeks to introduce measures relating to site access, hand washing, toilet facilities, canteens and eating arrangements, avoiding close working etc. On 31 March 2020 the Secretary of State confirmed in his letter to the construction industry that the Site Operating Procedures published by the Construction Leadership Council align with the latest guidance from Public Health England.