CDM prosecutions – what can we learn from them?

To improve the safety of construction works throughout the construction process, regulations were introduced, initially in 1994. Since then, the Construction (Design and Management) Regulations (CDM regulations) have gone through various iterations, each aimed at further improving health and safety outcomes in construction projects. The most recent provisions are contained in the 2015 Construction (Design and Management) Regulations (CDM 2015), which came into force on 6 April 2015.

Briefly, CDM 2015 applies to all construction projects, regardless of their size, duration, or complexity. It further tightened the rules, putting greater emphasis on the role of clients (those for whom a construction project is carried out) and created a new principal designer role, replacing the previous CDM co-ordinator role. It also provides for the appointment of a principal contractor where more than one contractor is involved. Domestic clients were also brought within its scope.

Photograph: iStock/Vladimirovic

The responsibilities of the various parties involved in construction projects – including clients, designers, principal contractors, contractors and workers – are detailed, including provisions related to risk assessment and management, the co-ordination of health and safety measures, the provision of information and training to workers, and the preparation of construction phase plans and health and safety files.

Failure to comply may lead to prosecution

A failure to comply with the requirements of CDM 2015 can result in enforcement action being taken by the Health and Safety Executive (HSE), including prosecution. Depending on the nature and severity of the breach, penalties can range from monetary fines to periods of imprisonment (for individuals). With that in mind, understanding and adhering to CDM 2015 is not just best practice, but a legal requirement.

The progressive development of the CDM regulations since 1994 coincides with an increase in the number of prosecutions; from eight under the 1994 version to approximately 300 under the provisions enacted in 2007. In the past 12 months alone there have been 17 prosecutions under CDM 2015. This is a huge increase in action taken by the HSE in more recent years. Of the 17 prosecutions undertaken in the past 12 months, 14 resulted in financial penalties, with two community-based disposals and one suspended prison sentence. Since it came into force, there have been 197 prosecutions for failures under CDM 2015.

In 2022, a major energy company was fined £900,000, the largest fine so far under CDM, after a worker was injured in an explosion caused by a cable strike during construction works. Reports suggest that the energy company, as principal contractor, had failed to properly plan, manage and monitor the construction phase works, contrary to section 13 of CDM 2015. It appears that cable markings had not been properly checked prior to work commencing, and the appropriate permit had not been completed correctly.

Although fines for CDM breaches have tended to fluctuate, six figure sums have not been unusual, including £800,000 for a breach by a principal contractor engaged in remedial refurbishment works, and £750,000 again for a breach by a principal contractor, this time engaged in boiler installation works. Both involved failures in planning, managing and monitoring.

CDM 2015 was also at the centre of a £700,000 fine handed to a major construction company in 2021 following a fatality. In this case, the deceased had been working on the construction of an electricity sub-station when his legs became trapped under a passing truck. There had been a last-minute design change to the area where the deceased was working, and no arrangements had been made for a risk assessment at such short notice. The HSE investigation found that the construction company had failed to properly assess the risks involved in the repair and replacement of equipment on site and of vehicles and pedestrians encountering each other. It had also failed to provide a safe system of work, segregating people from vehicles.

Another interesting example is the 2017 prosecution of a company, in its role as the client responsible for demolition works on a site.

An asbestos survey had identified the presence of asbestos-containing materials on the site. However, an HSE investigation found that the client failed to ensure suitable contractors were used to carry out the required asbestos removal and demolition work; had not notified HSE as it was required to do; and had failed to provide details of the asbestos removal and disposal methodology. The client was found guilty of failing to make suitable arrangements for managing the project in breach of section 4(1) of CDM 2015 and fined £170,000.

In another case in October 2023, a client, principal designer and principal contractor were all convicted of health and safety failings and fined a total of £410,000, after a slate tile fell from a hotel roof during renovation works injuring a three-year-old child. The principal designer and principal contractor were convicted of having failed to properly plan, manage and monitor the pre-construction and construction phase of the project, respectively, contrary to CDM 2015.

Hannah Beaumont is an associate solicitor at Pinsent Masons. Photograph: Pinsent Masons

The client was convicted of having failed to comply with their obligations under the Health and Safety at Work Act 1974 to ensure, in-so-far as reasonably practicable, the health and safety of persons not in their employment who may be affected by it. 

The HSE investigation found failures in properly assessing the risks of objects falling from height and hitting people. Further, the scaffolding was not fit for purpose because it did not have sufficient measures in place to prevent items falling, such as protective fans, covered walkways or, at a minimum, brick guards around the entire perimeter. There had also been insufficient consultation and collaboration between the various duty holders.

Highest number of fatalities in construction

So, what do these and the general increase in enforcement activity tell us? The HSE has repeatedly said that its focus is on holding those at fault to account and it is clearly intent on doing so in the construction sector. However, recent statistics from the regulator reveal that the British construction industry continues to have the highest number of worker fatalities at 45 in 2022-23 – an increase from 35 in 2021-22. 

A recent report will do little to persuade HSE that further enforcement activity is not required. The report, Implementation of the Principal Designer Role within CDM 2015, was commissioned by HSE to broaden its understanding of how the principal designer (PD) role works in practice.

Among the questions asked, survey respondents were presented with a range of 20 indicative PD activities. While the results show that most undertook activities such as collating the pre-construction information and liaising with the principal contractor, less than half indicated that the PD either obtained the details of temporary works designers or obtained further pre-construction information required by temporary works designers.

Photograph: iStock/Drazen

A range of interconnected factors were identified as influencing the suitability of a PD’s appointment. Several reasons were identified for a PD being appointed to the role without having the required knowledge, skills and experience, including the client not understanding the requirements of the role and the PD themselves not realising that they do not have the appropriate skill set. Commercial pressures too were identified as impacting on the resources available to discharge the PD role. When coupled with clients believing that the role is costly and does not add sufficient value, there is likely to be limited scope for investment in the role.

The failure of some PDs to recognise that the pre-construction phase (in the form of temporary works design) continues throughout the construction phase will be a concern to HSE, as will the apparent misunderstanding of the role and suitability of appointments made. Stakeholders have called for clarity as to what design, health and safety and organisational capabilities are required to undertake the PD role as well as whether the intent of the PD role should be just to manage the pre-construction phase, or whether there should also be clear leadership of it.

Robust selection process ‘essential’ for those with CDM duties

Duty holders must ensure that both they and their appointees are competent to carry out their duties and fully understand the extent of those duties and responsibilities. A robust and transparent selection and procurement process should be in place, to ensure a clear understanding of the differing roles and responsibilities on-site. Failure may mean that the correct advice about safety-critical issues is not being given, which may lead to an incident giving rise to prosecution. 

The past four years has seen eight fines in excess of £300,000 issued for CDM 2015 failures.  Where an individual is found to be at fault, immediate imprisonment is a real possibility. In 2018, a property developer was sentenced to eight months in prison for breach of CDM 2015.  Reputational risk, too, should not be forgotten. Safety records are increasingly important in competitive tenders, and those unable to demonstrate that they take such matters seriously may well find work harder to come by.

Duty holders should take note – the development of the CDM regulations has brought with it significantly increased regulatory enforcement activity and there is no sign of abatement. The provisions of CDM 2015 must be carefully considered and understood. 

Kevin Bridges is a partner and Hannah Beaumont is an associate solicitor at Pinsent Masons.

Implementation of the Principal Designer Role within CDM 2015, HSE report RR1198:

hse.gov.uk/Research/rrhtm/rr1198.htm

HSE guidance on the CDM Regulations: hse.gov.uk/construction/cdm/2015/index.htm

Contact Kevin Bridges and Hannah Beaumont at Pinsent Masons law firm:

pinsentmasons.com

[email protected]

[email protected]