Director Briefings Part 9: Potential Duties and Obligations Under CDM
In this briefing specialist Health and Safety Solicitor Julia Thomas, Principal Consultant Dr Richard Brown, and Senior Consultant Michael Campbell, discuss potential duties and obligations under the Construction (Design and Management) Regulations (“CDM”) 2015. If you are the director of a large construction company, you are likely to be familiar with the requirements of CDM. This briefing is aimed at those who have little knowledge of CDM.
As the name suggests, the Regulations apply to construction work, although this definition in itself can be misleading. The Regulations do not only apply to the construction (or deconstruction/demolition) of buildings, they apply to “any building, civil engineering or engineering construction work….”, for example, conversions, maintenance works, reworks, fit-outs, to name a few. Although CDM applies to commercial and domestic construction projects alike, we will only be dealing with commercial projects and the duties of the “Client” in this briefing. If you require information and advice on duties related to other duty holders under CDM and domestic projects, please do not hesitate to contact us.
The Regulations apply to all construction projects, not just those that are notifiable. A notifiable project is one where the construction work on a construction site is scheduled to last:
- More than 30 days and has more than 20 people working simultaneously on the project at any point or;
- Exceeds 500 person-days. Note a person day is one person’s working day. To illustrate this, if the project lasts for 25 days and there are two people, then this is 50 person-days. If the project lasts 20 days and there are 15 people, then this would be 300 person-days.
If you are the person (whether that be an organisation or individual) who has ordered construction or building work to be carried out as part of your business, then you will be a commercial client under the Regulations. As the Client, it will be your responsibility to report the planned construction work to the HSE through a form known as the “F10”. This can be done online via the HSE website. The F10 informs the HSE about important project information, detailing such things as project description, scope and contractors already appointed or who are intended to be appointed. This will include duty holders such as the Principal Contractor and Principal Designer. The duty to notify is a continuing one so keep an eye on project timescales and any additional work that may be required. If the timescale for the project reaches or exceeds any of the F10 notification thresholds you will still need to provide an F10 notification to the HSE.
You may only occasionally commission construction work as part of your business, for example, carrying out refurbishments to or extending of a production line so you may not be an expert on the defined roles under CDM or the legal obligations on those involved in a construction project. This is recognised within the regulations which stipulates the appointment of various competent parties to carry out the active management of the construction work. The key issue here is the written appointment of competent persons – the regulations state that the appointment “must” be in writing, which is an explicit legal requirement.
You may not be a construction expert but as a client, you still have a duty to ensure any building or construction project is well managed, and that work can be carried out so far as is reasonably practicable without risks to the health and safety of any person who may be affected by the project. This is a non-delegable duty.
Having in place a robust process for the selection of any contractors and checking their competence will help you to meet this requirement. If you cannot devise such a system yourself then you should seek help from an individual/company with suitable health and safety competency and has experience in the planning and management of construction projects. In any event, clients should ask anyone they appoint to their project to explain their management arrangements for keeping those involved in the project and others safe and free from harm.
In addition to the above, it is up to the Client to ensure that sufficient time and resources are allocated to the project. You should check whether those contractors whom you seek to appoint are adequately resourced to carry out the work expected of them. Contractors should be allowed sufficient time to complete each stage of the project so make sure this is something that is part of any appointment negotiations. If insufficient time is allocated to a project or part of a project, then the quality and safe completion of the works are at risk. It is therefore imperative to ensure that any contractor appointed can complete the assigned work in the allotted timeframe. It is important to regularly review the progress of a project against a timing plan to ensure that any delays do not increase pressures on the workforce. It is also important to continually review the scope of a project as additional works may be identified that change the timing or work required. This is particularly relevant to maintenance projects where the scale of work required may only be evident once work has begun. For example, a routine inspection can identify equipment that is about to critically fail, resulting in more work and time being required than the initially planned inspection. In the event of an incident, it is not just that contractor who the Regulators will be investigating it may also be you as the Client.
If you have a project which involves the appointment of more than one contractor, or it is reasonably foreseeable you will need additional contractors at some point through the project you will need to appoint in writing both (i) a Principal Designer to take responsibility for the pre-construction phase of the project and (ii) a Principal Contractor to take responsibility for the construction phase of the project. If you as the Client do not appoint a Principal Designer/Contractor in writing, you will be deemed to have taken on this role by default as defined within the regulations. The Principal Designer will plan, manage, monitor and co-ordinate health and safety in the pre-construction phase. Additionally, the Principal Designer will prepare and provide relevant information to others working on the project such as other designers and contractors as well as to assist the Principal Contractor. The Principal Contractor’s role is to plan, manage, monitor, and coordinate the construction phase (the phase where physical work is undertaken).
This is not all you need to consider as a Client. You will also need to:
- Ensure all relevant information is passed onto designers and contractors to enable them to carry out their roles without risk. For example, any asbestos registers, surveys and reports and any other documentation relating to the proposed construction site and other factors which may impact the work should be provided to the designers and contractors working on the site so they can make a comprehensive assessment of the risks associated with the works.
- Check the Principal Designer and Principal Contractors are carrying out the roles and fulfilling their duties.
- Make sure that adequate welfare facilities (sanitary conveniences, washing facilities, drinking water, changing rooms and lockers, rest areas), are provided for the duration of the project.
If you would like more information on your potential duties and obligations under CDM please do not hesitate to contact:
Julia Thomas: Julia.firstname.lastname@example.org
Richard Brown: Richard.email@example.com
Michael Campbell: firstname.lastname@example.org