FTQ’s – CDM2015

Are Asbestos surveys subject to CDM2015 Regulations? I.e., do they come within the CDM2015 definition of “construction works”?

There are two types of asbestos surveys – Management Surveys and R&D (Refurbishment and Demolition) surveyes.

Management surveys that are non-intrusive may not qualify as “construction works”, particularly if they are being undertaken only to create an asbestos buildings register. They may come under CDM2015 Regs if they are being undertaken as part of a construction project. Without recourse to specific project particulars, it is impossible to give a yes/no answer.

However, R&D (Refurbishment and Demolition) surveys most certainly will, as they are usually highly invasive (i.e. building components are dismantle/destroyed) and are normally carried out as part of a larger construction project.

This can be quite a controversial subject, as CDM2015 Regs specifically exclude “site surveys” from the definition of “construction works”. However, site surveys are normally limited to measuring, (non-invasive) testing and visual condition assessment. In addition, “dismantling of a structure” (which is necessary for R&D surveys) comes within the definition of “construction works”.

H&S laws/regulations are there to protect people from harm. It is accepted within the Law fraternity that where interpretation is required, then interpretation must always fall on the side of the argument supporting the original reason for the laws/regulations to be created.

It is therefore our opinion that R&D surveys are always subject to CDM2015 Regulations. HSE (F10) notification is a separate matter.

Management surveys, may not be subject to CDM2015 Regs, but may do, depending upon project specifics.

Under H&S Law, I have responsibility to protect my workforce from foreseeable hazards – how can I protect my mobile workforce from the coronavirus while they are still allowed to work? 

Stay away from households / persons who are confirmed or suspected cases of Coronavirus. Observe strict hygiene protocols (frequent hand washing, carry and use handwash, etc.), social distancing (min of 2m separation), wearing of appropriate PPE (surgical grade gloves, medical grade masks), keep a change of clothes in the works van and change into fresh clothes if anyone sneezes or coughs onto them. Bag the contaminated clothes into plastic bags and take home. Empty the clothes from the bag directly into a washing machine, wash on a hot wash and dispose of the contaminated bag by placing it into a fresh bag, tie the fresh bag and dispose of bot in an outside bin – use fresh gloves which are disposed of in the same manner. Dispose of masks and gloves in the same way. Wash works clothes each night in a hot wash. Minimise exposure and avoid all contact with all persons. Wash frequently used equipment in warm, soapy water and dry well (obviously take care with any electrical items). 

Can a project under CDM2015 Regulations, have more than one Client? 

Yes – but the HSE prefers that only one person or organisation is nominated as the Client per project. Where multiple Clients exist on the same project, then one can be elected as “The Client” under CDM Regulations and only that one Client would appear on the F10 (if one is required). Any such arrangements should be in writing and at the earliest opportunity. 

Where multiple Clients exist on the same project and one member of that consortium is nominated (in writing) as “The Client”, in the event that the HSE prosecute the Client for breaches of H&S Law/regulations, would the other members of that consortium be immune from prosecution? 

Interesting question and the answer, in our opinion would be “it depends”. The HSE are keen to send out the message that Clients must take ultimate responsibility for their projects and in our experience, will seek to place blame on the Client, if then can. Therefore, and again in our opinion, the HSE under these circumstances would look at all Client members of the consortium and see if they can be held responsible for any part of the events that lead up to the incident that resulted in prosecution. If the arrangements for nominating “The Client” were found to be a blatant attempt to deflect blame away from the actual responsible party, then we believe that in these circumstances, “The  Client” nomination would be viewed as fruadulent and as an obvious ploy on the part of the others to avoid their legal responsibilities and these Client arrangements would most probably be overturned in court. 

The phrase “Lead Client” is used by some H&S professionals – is a “Lead Client” recognised in H&S Law? 

No. There is no such thing as a “Lead Client” under any H&S Law or regulation, including CDM Regulations. There are just “Clients”. Where there are multiple Clients involved in the same project, the HSE encourages the nomination of one Client, representing the consortium. This nominated Client then attracts all Client responsibilities under CDM Regulations. 

If a Principal Contractor approaches a potential Client and says “we will build properties at our expense, on some land and after we have built them, we want you to buy them from us” – then who is the Client under CDM-R? Is it the Principal Contractor or the person/company who buys them at the end of the construction phase? 

If an arrangement to develop properties is agreed with a second party – particularly before the construction phase starts and / or if any design input was made by the end buyer – then we believe that the end-buyer would be the Client under CDM-R as these regulations state that the Client is “for whom the project is being undertaken”. In all probability, the HSE would regard the PC as a Client on the project, as well as the end-buyer.

If the property was built on a speculative basis and then sold, then the PC would be the sole Client for the duration of the project.

If the property was sold “off plan” then the particular circumstances – if it was a domestic or commercial buyer, how far the project had progressed, stage payment arrangements, buyer influence on the designs  / timescales / materials used etc. – would need to be evaluated to determine who would be the Client either solely or jointly with the PC.

Can a project under CDM2015 Regulations, have more than one Principal Designer? 

No – this would be contrary to the idea that one single person (or entity) must be in overall charge of the design phase, regarding identification and management of hazards.

However, a Principal Designer is a designation rather than a single person and a company or two or more people can be appointed by the Client to perform the role of Principal Designer. In fact the HSE would rather that a H&S construction specialist together with a competent Designer (Architect etc.) work together to fulfil this role.

Under CDM2015 Regulations, who is responsible for providing water to the employees of a sub-contracted company who is working under the Principal Contractor? 

The sub-contracted company, not the Principal Contractor. 

If a Contractor is assigned a project by a Client and that Contractor sub-contracts all works to another Contractor who only employs direct employees and the original Contractor does not set foot on site, does the Client need to appoint a Principal Contractor and Principal Designer under CDM2015 Regulations? 

Yes. This opinion is based on; CDM2015 regulations 5 (Appointment of the principal designer and the principal contractor) states;
(1) Where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time, the client must appoint in writing—
(a) a designer with control over the pre-construction phase as principal designer; and
(b) a contractor as principal contractor.
(2) The appointments must be made as soon as is practicable, and in any event, before the construction phase begins.
(3) If the client fails to appoint a principal designer, the client must fulfil the duties of the principal designer in regulations 11 and 12.
(4) If the client fails to appoint a principal contractor,

The keyword here is “working” and could be open to interpretation. Does this word limit the definition to “working on site”?

I would argue not. For example, a designer, as part of a design team, may never set foot on site – does this mean that they are absolved of their CDM duties? No.

Further, the word “working” includes making arrangements, planning and supervising works from afar.

In addition, it is impossible to rule out that someone from the primary Contractor will NEVER set foot on site, given the nature of any construction project.

As regulation (5), (1) states “or if it is reasonably foreseeable…”, then I believe it is reasonably foreseeable that future events (accident, sickness, sub-contractor poor performance etc.) may require the original Contractor to attend site.

Finally, as regulation (5), (3) states, if a PC and a PD are not appointed (when there is a requirement to do so), then the Client must fulfil their duties etc.

In the event of an accident that results in HSE investigation, I am absolutely convinced (based on personal accident investigation experience) that the HSE would make a bee-line to the Client and prosecute them as Client, PC and PD.

It is a Client duty to appoint the PD and PC and it is definately in the Client’s interest to restrict their legal risk exposure to that of and only to Client duties.

There is nothing in the CDM2015 regulations to prohibit a Client from appointing a PD, even if there is only one contractor – some do so, just to ensure they do not attract extra duties and to reduce their workload