Health and safety law(s) in construction

Health and safety is an obvious concern across all industries. It’s of particular importance within the construction sector, given the scope of work and nature of activities undertaken, and, in particular, the associated risks that naturally prevail. 

In the UK, statistics have consistently revealed that the fatality rate in the construction industry remains the highest when compared across all other industries (agriculture being shortly behind). In the main they arise from falls from height, being struck by moving machinery or objects, or being trapped by something collapsing.

The Health and Safety at Work etc Act 1974 

The Health and Safety at Work etc Act 1974 (“HSWA  74”) sets out the basic health and safety duties of a company, its directors, and employees. HSWA 74 is the primary piece of legislation covering occupational health and safety in Great Britain and contains general duties of employers and persons in control, or concerned, with a premises.

However, it also acts as the framework for applicable secondary legislation (by virtue of Regulations) pertaining to health and safety, which derived from the EU and sought to harmonise relevant provisions throughout Europe. Given the characteristics of the work undertaken in the construction sector, there are a host of other Regulations that should be considered, directly and in the context of a construction project. They naturally cover a range of topic areas, but the approach is similar for each one, based upon the principles of prevention:

1.   Avoid where possible

2.   If the hazard is unavoidable, evaluate the risk

3.   Then either address it at source or adapt working methods to minimise its effects

The regulations are all ‘substantive’ insofar as they create positive and detailed health and safety duties upon businesses, which are specific to workplace health and safety or in connection with their conduct or undertaking.

There was a landmark change in the way in which the construction industry was regulated following the introduction of the Construction Design and Management (“CDM”) 1994 Regulations. It changed the way construction was considered, planned and managed; however, they were considered structurally complex and many struggled with the systematic approach and concepts. This gave rise to CDM 2007, which aimed to simplify the Regulations by placing specific duties on key duty holders, reducing bureaucracy, and introducing a new duty holder. 

Whilst the introduction of CDM 2007 saw a reduction in the number of fatalities and major injuries in the industry, it remained one of the highest risk industries in which to work, with unacceptable standards arising to avert the risk of injury, particularly on small sites where the majority of accidents are still said to occur.

It was felt that there continued to be a lack of coordination at the pre-construction phase when hazards can be designed out of the construction, use and maintenance phases of a project’s life. Therefore, the introduction of the CDM 2015 implemented a host of changes to:

-   Simplify the structure, to make the Regulations easier to understand and remove duplication

-   Create a linear approach following the process of a project more logically, and embed from the outset to completion, the principle of ‘prevention’

Construction Design and Management 2015

This came into force on 6 April 2015. Its impact is wide-ranging and forms a key part of the health and safety legislation affecting all construction and engineering projects and property developments, now including construction work for domestic households (the previous exemption or exclusion under the 2007 regime no longer applying).

The 2015 regime applies throughout the life of a project, from concept to completion, and maintenance, thereafter, placing specified obligations on various duty-holders, none of which are mutually exclusive. 

The 2015 Regulations anticipated that a single person/ organisation may have many sets of duties. So, for anyone operating within a construction project, it is imperative to ensure that each party within each phase knows with precision what ‘legal’ status it holds, whether one or more, thus what duties, obligations and requirements it must fulfil at each stage of the process.

Certainly, from any enforcement perspective as criminal sanctions apply to a breach of the CDM 2015 and the obligations that arise under them.

Enforcement:

As mentioned above, HSWA 74 sets out the basic health and safety duties and acts as the framework for other health and safety Regulations, including CDM 2015. The range of legal obligations are notably extensive.

The duties placed upon a party, as specified within the HSWA 74 and associated Regulations, are frequently qualified with the terms ‘as far as reasonably practicable’ or ‘best practicable means’. Certainly, with regards to obligations specific to each of the duty holders, this is a narrower term than being ‘physically possible’.

In summary, this involves weighing the potential risk against the trouble, time and money needed to avert and or control it. Thus, it requires a degree and exercise of judgement. However, settled case law is established in respect of the principle, which prescribes that the decision is weighted in favour of health and safety because the presumption is that the duty-holder should implement the risk reduction measure – certainly where a risk is deemed significant.

To avoid having to make this so-called sacrifice, the duty-holder must be able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved. Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices. 

The construction industry is generally deemed high risk given the number of fatalities and work-related injuries. Consequently, it attracts significant attention from the regulatory authorities (usually the HSE) responsible for the enforcement of health and safety legislation.

In reality, on construction sites, the HSE will not expect the working environment to be completely risk-free should they inspect, either routinely or following an accident. Construction sites are highly hazardous environments due to the nature of the work being carried out. What they will expect is that you have adequately assessed the risks and reduced them as low as can be expected.

In the event the HSE (and or other regulatory authority) identifies a breach of health and safety legislation, they have a range of powers and enforcement methods at their disposal, all of which can have a cataclysmic impact on the duty holder and or the ongoing viability of a construction project.

At the conclusion of the investigation process, should the HSE assert there have (or still are) breaches of applicable health and safety legislation then they have a range of options about how they can potentially proceed. This can range from informal advice, warning letter(s), enforcement notices (improvement or prohibition) and ultimately the issuance of proceedings by way of a prosecution before the court.  

Health and safety offence sentencing guidelines

A proactive approach:

Organisations and individuals need to take a proactive approach to health and safety. That will include discussing health and safety at a senior level, documenting good safety practices, running, learning from and implementing the results of audits, responding to and learning from near misses and assessing immediate areas for improvement.

When a serious accident occurs, organisations and individuals should also seek prompt advice to help mitigate the impact and implement their crisis management policy.