27 March 2020 - Article
The HSE has published draft guidance on the legal requirements arising from the new Construction (Design and Management) Regulations (‘CDM 2015’) . Designed to be easier to read than its predecessor, CDM 2015 makes some substantive changes while reallocating some existing duties to different people. Breaches of the new rules, which may still change prior to 6 April, may lead to criminal liability with a maximum penalty of an unlimited fine or 2 years’ imprisonment, or both. Breaching the guidance, while carrying no criminal liability in itself, may indicate non-compliance with the regulations.
The draft Legal (L) Series guidance is being made available before CDM 2015 comes into force to give dutyholders under the new Regulations time to prepare in advance. Draft industry guides can be found on the HSE website explaining the new responsibilities for clients, contractors, designers, principal contractors, principal designers and workers.
Under CDM 2015 the ‘CDM co-ordinator’ will no longer exist – their previous duties are to be split between the client, principal contractor (‘PC’) and the new role of ‘principal designer’ (‘PD’), a designer in control of the pre-construction phase appointed to plan, manage, monitor and co-ordinate health and safety during that phase. Clients have a number of extra duties:
- Appointing a PD and PC where there is more than one contractor, or where it is reasonably foreseeable that more than one contractor will be working on a project at any time;
- Fulfilling the duties of a PD and PC in the event of a failure to appoint them;
- Making suitable arrangements for managing a project;
- Taking reasonable steps to ensure that the PD and PC comply with their duties under the Regulations;
- Ensuring that the PD prepares and maintains an appropriate health and safety file for the project;
- Providing pre-construction information, including health and safety hazards, to every designer and contractor appointed or considered for appointment.
Domestic clients (those having construction work carried out at their own home or the home of a family member which is not done as part of a business) are also subject to the new rules, although their duties are normally transferred to the contractor or PC, or they can choose to transfer them to the PD by written agreement.
Other key points to note under CDM 2015 are:
- The pre-construction phase includes any period during which design work is carried out, so the PD does not necessarily hand over responsibility to the PC as soon as the construction phase begins – the timing will depend on who is responsible for design once construction begins;
- The PC is now in charge of overall co-ordination for health and safety during the construction phase, rather than each duty holder being responsible for co-ordinating their activities with each other;
- The client’s duty to verify the competence of those it appoints has been changed – now whoever is responsible for appointing a designer or contractor must ensure that they have the necessary skills, knowledge, experience and (if an organisation) organisational capability to carry out their role in a way that secures health and safety on the project;
- CDM 2015 applies whether or not the project is notifiable;
- CDM co-ordinators already appointed on projects which span 6 April 2015 can remain in post for 6 months or to the end of the project, whichever is earlier.
What this means for you
- Duty holders on projects which have already started on 6 April 2015 can choose to implement CDM 2015 on any date between 6 April 2015 and 6 October 2015;
- Clients of existing projects will need to check whether there are any new duties under CDM 2015, whether or not their project was notifiable under CDM 2007, and will need to ensure that their designers and contractors meet the new competence criteria;
- If a CDM co-ordinator has been appointed, a PD must be appointed to replace the CDM co-ordinator by 6 October 2015 unless the project has finished before that;
- If there is no existing CDM co-ordinator and the construction phase of a project has not started, a PD must be appointed as soon as practicable; if the construction phase has started, a PD may be appointed or if not the PC will be responsible for preparing the health and safety file;
- Existing CDM co-ordinators will need to prepare a health and safety file to comply with CDM 2015 to hand over to any incoming PD;
- Existing PCs will be deemed to be PCs under CDM 2015.