Construction design dilemma: CDM2015

The current requirement of hazard elimination and risk mitigation as proposed in CDM2015 has the odds stacked against it, argues John Carpenter. He offers some thoughts on how to improve the situation.

Since 1995, the mandatory requirement under criminal law for construction designers (as employers) to have regard to the consequences of their design decisions on others has been explicit; typically this refers to the client, contractors, users and maintainers.

The principle behind this is sound – a failure to do so will not only affect others’ wellbeing (the rationale of the legislation), but can also have a significant financial impact.

As a general rule, careful pragmatic application of the former can directly benefit the latter, and in good risk management one should not be able to see the join.

However, this legal requirement has been fraught with difficulties since it was introduced and it has not realised its potential. The industry is about to be confronted with the third version of the Construction (Design and Management) Regulations (CDM2015) still none the wiser nor, it appears, closer to a resolution.

Construction industry
When we talk about the ‘construction industry’, we give the impression of a unified coherent body of activity, but in reality there is no such thing. For reasons related to history – business definitions (SIC categories for instance) and legislative convenience, a group of sometimes-disparate industries are lumped together.

Some would never, in day-to-day terms, consider themselves to be part of the core ‘construction industry’ e.g. IT cabling installers, utilities, even house-builders.

In parallel with this are the industry demographics whereby over 90 per cent of companies employ a mere handful of people; on the design side many of these are sole traders. The demographics are not unique to construction but they add a complication in terms of communication and engagement.

Construction is a high-risk, labour-intensive (in its broadest sense) industry, which operates in difficult and often somewhat unknown and unpredictable environments. Perhaps only agriculture and fishing are comparable with regard to the construction-working environment.

And yet no entrance test is applied; anyone can be a structural, M&E or civil engineer and offer their services, unlike architects who have a protected title. The changes to the ‘competence’ requirements in CDM2015 do not appear to be helpful in this regard.

For all these reasons, deriving a uniform approach to designers’ duties remains problematic.

Current application
Having observed designers at work for many years and listened to others who have done likewise, it is clear that designers’ activity, in respect of the discharge of their responsibilities to others, tends to fall into one of three categories.

1. Considered effort: probably a minority group. This group seriously considers hazards and risk mitigation (with some significant variation within larger practices), but is unable to state how they know whether their approach satisfies the legal test (see below). In other words, in the absence of any guidance, they do what appears reasonable and acceptable to them. In most other circumstances this might be entirely sensible. However, in this case, this is not the test and those exercising this approach have no means of knowing if they have done enough; there are no benchmarks to which reference may be made.

2. Mechanistic effort: probably the majority. This group tends to produce often large quantities of ‘risk assessment sheets’ in a mechanistic manner without any real understanding of the issues, shortfalls, or, crucially, whether these add value. Like the first group, they do not know if what they do is compliant. They rely on having something on file should any questions get asked. In many of these organisations, management does not take any interest in, or give any real support to, design engineers or architects (see section 2 of reference 1 at the end).

3. No effort: despite CDM having been in existence for some 20 years, these designers have never made any real effort to comply. They often work in an environment where nobody asks and the contractors do not anticipate any assistance from designers. Paradoxically, these projects often have the greatest risk (in terms of likelihood of occurrence) of serious failure and harm to persons.

It would be wrong to suggest that, in any of the above categories, designers wilfully allow overtly dangerous situations to occur. However, the issue is not generally with the extremes, it is the middle ground where the uncertainty lies.

Legal issues
The requirements on designers are a particularised version of section 3 of the Health and Safety at Work etc. Act 1974, i.e. to have regard to the wellbeing of those affected by an employer’s actions, but not in its employment. It is surmised that the act’s drafters, back in 1972-1973, had a typical scenario in mind whereby an employer would instigate a work activity and use its own employees, of known capability, under its direct control; or bring labour in, but again with the facility to vet those used and the entirety of their work, still under the initiating employer’s control and where communication was readily affected.

The construction industry is known for its excessive fragmentation. The client-appointed designer (the employer), in most cases, lacks the wherewithal to select those doing the work, review their work proposals, still less control the work.

The contractors’ knowledge of the construction process will usually far outweigh that of the designer; the chosen contractor (usually unknown to the designer at the time of the design) may have a particular way of managing a task, safely and effectively.

All these issues (coupled with those outlined below) militate against designer influence in this ‘middle ground’. This scenario takes us progressively outside the original important concept of responsibility falling to those who create and control risk. The designer may initiate risk, but often does not control it.

Compliance is judged against the letter of the law, as modified by case law, and illustrated by authoritative guidance. On a day-to-day basis, it is the latter to which reference is made and for contractors there is a wealth of advice relating to all key high-risk work activities.

While not underestimating the difficulties sometimes faced, generally contractors know what ‘compliant’ looks like for core activities in normal environments.

However, for designers, there is no case law (the number of prosecutions of designers is minimal, and none has tested this issue) and there are no illustrative benchmarks of ‘compliance’. While extremes are (or should be) well recognised, it is again the middle ground that is unknown: to industry and also to HSE.

The question of ‘how far should designers go’ in their efforts to eliminate hazards, or ‘mitigate risk’ has been extensively examined [2] but remains unresolved. It was raised by government in 2005 [3], promising advice, and again by Löfstedt [4] , but has been ignored in the papers relating to CDM2015 despite it being central to the entire designer role.

Contractor-appointed designers are still no clearer as to what ‘compliance’ looks like in legal terms, but do have the advantage of close proximity to the constructor (indeed they are under the contractor’s control). A solution that satisfies the contractor is likely (but not certainly) to be acceptable to the regulator but this is not the legal test. It lacks a basic certainty.

However, one advance is that it now seems to be recognised that ‘proportionate’ action is the aim, rather than the target of continuing effort up to the point of ‘gross disproportion’ (a wholly unknown quantum that no-one understood in practical terms).

This has been a long time coming but confirms oral advice provided by HSE some time ago [5] and appears to be supported by recent case law [6]. Notwithstanding, even ‘proportionate’ action needs some explanation in the design context (and probably needs addressing for contractors as well, although the need is not so great).

Contractual issues
It is established that statute takes precedence over contract. However, in the pressure pot of everyday workplace life, the reverse is usually the case. For designers, there are several reasons why this is so [1]:

• A lack of understanding as to exactly ‘how far to go’ (as noted above) and of buildability issues.
• A failure by design organisation management to give real pro-active support and assistance.
• A lack of contact with the project contractors due to chosen procurement routes.
• A limited brief (sometimes deliberately, limiting involvement during construction).
• A failure by designers to see how they can influence for the good and perhaps also a reluctance to accept that designers (in the middle ground) have any real role to play.
• Pressure on fees and on meeting unrealistic programme targets.
• A perception (but almost the reality) that ‘HSE will never call’ (has a designer ever been issued with an improvement notice?).

Finally, there is an absence of a true industry culture; one that says all parties work together for the project’s good and that it is not acceptable to do otherwise, or to accept a commission which does not allow this to occur.

However, cultural change can only come from the top, relying on leadership. Even on the Olympics construction project, which set new standards of excellence in so many areas, Lawrence Waterman, head of health and safety, has said that designers “did not identify and take every opportunity to reduce risk”.

This situation is very complex; many of the above bullets are inter-related; some do not reflect well on designers; others are systemic.

Nonetheless, it represents a lost opportunity to not only improve the safety and the health (the latter being almost wholly ignored) of the workforce but also maximise project whole-life financial out-turns. Simply put, a square peg is currently being forced into a round hole.

Looking ahead
A goal-setting approach to design problems is beneficial if the boundaries and rules are set, and the duty holders are able to understand, and implement, a proportionate qualitative-risk assessment approach. In construction design, this is neither fully implemented nor understood. Indeed, many designers seek prescription, and will say, “Just tell us what to do”.

When taking all the influencing factors into account, the current legal requirements are unworkable unless specific criteria are met; this does not occur on many projects. Such a situation overall leaves the law in disrepute.

The long-term solution lies in serious game-changing measures such as design and construction being integrated so as to remove a key element of fragmentation (risk thrives at interfaces), and insisting that any designer meets minimum whole-life competency criteria (achieved by default via institution membership) when working on high-risk design activities. However, it has to be admitted, these are not likely in the current climate.

In light of the above, what possible solutions are there?

1) The most common causes of accidents and ill-health are tracked back to see how designers could, in general terms, bring benefit and avoid or minimise opportunity for these to occur. Where practicable, selective prescriptive measures should then be imposed on designers, unless they could demonstrate equal alternatives.

2) Authoritative advice should be published on how designers should interpret the requirement to eliminate hazards and mitigate risk i.e. ‘how far to go’, with regard to both safety and health, for those scenarios not covered by the above point. After 20 years, this is overdue.

The construction industry contributes some 8 per cent of GDP; it employs around 2 million people. It deserves better. It needs effective and competent leadership and it deserves much improved clarity.

John Carpenter is a consultant and also author of Guidance for Designers.

References

1. See the ‘Four Impediments’ in CDM three years on at http://www.ice.org.uk/getattachment/d0fa4659-ba74-4fb9-9ef8-186a185b5447/ICE-CDM-3-Years-On-Report.aspx.
2. Review of, and commentary on, the legal requirement to exercise a duty ‘so far as is reasonably practicable’ with specific regard to designers in the construction industry http://www.ice.org.uk/Information-resources/Document-Library/So-Far-As-Is-Reasonably-Practicable.
3. Government response to the House of Lords Select Committee on Economic Affairs, Paper 183-I government policy on the management of risk volume 1 report at http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeconaf/183/18303.htm.
4. Reclaiming health and safety for all at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/66790/lofstedt-report.pdf.
5. HSE/IIG workshop 22 November 2011.
6. Baker v Quantum Clothing Group Ltd & Ors [2011] UKSC 17.

The Safety Conversation Podcast: Listen now!

The Safety Conversation with SHP (previously the Safety and Health Podcast) aims to bring you the latest news, insights and legislation updates in the form of interviews, discussions and panel debates from leading figures within the profession.

Find us on Apple Podcasts, Spotify and Google Podcasts, subscribe and join the conversation today!

Listen here!