Practical Law

The construction industry has an unenviable health and safety record. In the year to 31 March 2009, there were 53 construction site deaths. Although this number was lower than the previous year (when there were 72 deaths), the construction industry remains one of the most dangerous industries to work in.

Why is the industry’s record so poor?

This is one of the main questions addressed by Rita Donaghy in her recent report One Death is too Many. There are a large number of reasons, ranging from an absence of safety leadership, the high level of self-employment in the construction industry and a lack of appropriate skills training, through to failures of workplace equipment and machinery.

What is being done to improve health and safety?

To me, as I am sure to many people, an average of one death a week is a disgrace. Both Government and the industry recognise the problem. The Donaghy report was a direct response to the Government inquiry into the huge number of deaths in the sector. It makes a number of recommendations, which may or may not be implemented by the Government. Other attempts to address this issue include:

• Construction (Design and Management) Regulations 2007 (CDM 2007).
• Corporate Manslaughter and Corporate Homicide Act 2007. The first corporate manslaughter case is listed for trial in February 2010.
• The Health and Safety (Offences) Act 2008. This legislation increases the penalties that the courts can impose. It also provides that directors and senior managers can face the possibility of imprisonment if a company’s health and safety failure is attributable to their “neglect, consent or connivance”.
• Changes in HSE policy. The HSE has positively changed its policy to become more engaged with the construction industry, which has helped the HSE concentrate its resources in areas that are most effective, namely investigations and enforcement.
• JCT 2009 revisions. In the 2009 revisions to its 2005 suite of contracts, the JCT has included supplemental provisions relating to health and safety, including a statement of intent that encourages parties to establish a working environment in which health and safety is a “paramount concern”. The contractor is also placed under additional health and safety duties.

Will these initiatives work in practice?

One of the issues highlighted in the Donaghy report that really struck a chord with me was the sense of resigned acceptance of the regular toll of fatalities in the construction industry: construction fatalities appear to be socially acceptable.

To my mind it is only through a change in this attitude, improving site management and promoting behavioural change at the top of the industry that the safety record will improve. Can legislation change this? We think it can.

We are beginning to see a difference in the way many clients approach health and safety through CDM 2007; this legislation does appear to be having an effect. Since the introduction of CDM 2007, which imposes more responsibility on clients for health and safety issues (and therefore more accountability), we have noticed that our clients have an increased appreciation of their role and of the CDM Regulations. We are receiving numerous requests for guidance in this regard.

More can be done

While the role of client and CDM co-ordinator under CDM 2007 appears to be having a positive effect, the Donaghy report claims that there is some confusion over the role of principal contractor. The responsibility for safety already lies clearly with the contractor, but this responsibility needs to be further clarified in order to raise standards and assist the courts when considering alleged breaches of health and safety. This extends to more explicit duties on directors of principal contractor companies. The report claims that existing legislation (though extensive) is unclear and fails to encourage best practice on site. The recent CDM2007 Impact Survey supports this view.

The Donaghy report is a good start to raising the profile of construction fatalities and making them socially unacceptable. The challenge now is to keep up this momentum.