CPD Construction Health and Safety

Should clients inspect the work of their contractors on construction sites? In light of seemingly conflicting guidance and practice on the issue, Nick Bell examines the duties on clients and offers possible approaches.

When it comes to construction work performed by contractors, organisations such as the Office of Government Commerce1 and the Construction Clients Group2 advocate that the client, or ‘integrated project teams’ (which include the client), should carry out spot checks and site visits. The Olympic Delivery Authority, for example, uses CDM coordinators to undertake quarterly assurance checks of site activities.3

So far, so sensible. However, the Approved Code of Practice to the Construction (Design and Management) Regulations 20074 states that clients do not have to “visit the site (to supervise or check the construction work standards)”. And the HSE’s position is that: “Health and safety on site is a matter for the contractor…Clients simply have to ensure that the initial project management arrangements which have been made are maintained. This can be achieved by seeking assurance from the designer and contractor.”5

Thus, it is a commonly-held view that, having appointed a competent contractor, a client does not need to check that contractor’s safety performance. But what about the HSE’s guidance on the management of contractors, INDG368,6 which states: “Clients, contractors and sub-contractors should monitor their health and safety performance. This means checking whether the risk assessment is up to date and that control measures are working. The level of monitoring depends on the risks – the greater the risks, the greater the monitoring. Clients should make periodic checks on the contractor’s performance to see if the work is being done as agreed.”

While INDG368 also states that the guidance contained therein is not applicable to construction projects, two crucial pieces of case law – R v Swan Hunter Shipbuilders [1982] and R v Associated Octel Co Ltd [1996] – have established that there are situations in which employers must exercise some influence over the work of contractors in order to protect both their own employees and the employees of the contractors.

To illustrate how these rulings might work in practice, take the following two projects: Project A comprises the construction of a retail unit on a brownfield site. The client is a car dealer who wishes to open a branch in a new area. Project B involves the upgrading and refurbishment of individual patient bays scattered throughout a hospital. The hospital has worked closely with the contractors to develop a plan of work to ensure that both the project and the day-to-day running of the hospital can proceed in a healthy, safe and efficient manner.

Project A poses no risks to the employees of the car dealer, but during Project B there will be frequent interface between contractors and staff. Consequently, the hospital (Project B) must ensure that adequate arrangements are in place to protect its own staff, in line with section 2 of the Health and Safety at Work, etc. Act 1974 (HSWA) – and section 2, of course, includes providing supervision.

For example, the hospital might need to help determine the contractor’s arrangements for site security, access routes, or fire protection and then check that these are in place. Indeed, HSG168 (Fire Safety in Construction)7 states that “where the clients’ activities overlap with that of a contractor, they might need to become involved in the operational management of site activities”.

Clients will often have a duty of care to the contractor’s workforce under section 3(1) of the HSWA. Lord Hoffman’s ruling in the Octel case states that: “The employer must take reasonably practical steps to avoid risk to the contractor’s servants, which arise not merely from the physical state of the premises…but also from the inadequacy of the arrangements which the employer makes with the contractors for how they will do the work.”8

The client for Project A (the new car showroom) can reasonably fulfil its obligations without ever setting foot on site by ensuring that the contractors are competent, have relevant information about the site, and have suitable arrangements for managing the work – all in line with CDM 2007. (Note: Construction clients have been prosecuted under section 3(1) HSWA for failing to take these steps.)9,10

One element of Project B (the hospital) involves the demolition of a partition wall to turn two adjacent bays into a single room. The hospital stipulates certain conditions and restrictions on work methods to safeguard the contractor and patients (e.g. protection of operational medical gas cylinders and pipelines, infection-control protocols, etc.)

In line with the aforementioned INDG368, the hospital then checks that these additional risks and controls have been included in the contractor’s risk assessments and method statements, and periodically monitors the work to verify that the controls are implemented. (Lord Hoffman acknowledges that it may not be reasonably practicable for employers to supervise the activities of a specialist independent contractor.)

Monitor wizard

Regulation 25 of CDM encapsulates the notion that the more someone controls how a contractor performs their work, the more responsibility they have for ensuring it is undertaken safely. Take the following scenario: a contractor was due to receive the first steel delivery for a project in the centre of a large university campus. The location meant that a difficult reversing operation was unavoidable. The client and contractor identified a potential risk to staff and students, so they worked together to develop a plan involving an escort vehicle, pedestrian diversions, warning signage and use of a number of banksmen.

The client jointly observed the first delivery with the site manager and undertook spot checks on future deliveries to ensure the arrangements were working. The client verified that a lifting plan was in place but did not monitor the offloading of the steel once the vehicle was inside the compound. That was because this was a specialist task, outside the ability of the client to comment on, and posed no risk to the client’s operations in that area, and vice versa.

Clients who procure construction work therefore need to make a judgement about the degree of monitoring that they ought to undertake. Factors that increase the amount of monitoring include:
• The work could pose a risk to the client’s employees;
• The client’s operations pose a risk to the contractor (especially if these create unusual hazards, with which a contractor might not be familiar); and
• The client has dictated how the contractor performs aspects of their work.
Factors that decrease the amount of monitoring include:
• The work is of a specialist nature;
• The work is distant, or completely segregated from the client’s staff and operations; and
• The client has had to exert little, or no control over the contractor’s plan of work.

But there may be other reasons why a client wants to undertake some form of monitoring, such as:
• Protecting assets: A construction project could be a very significant investment and possibly a cornerstone of a business plan. Clients may reasonably want to ‘go the extra mile’ to check that the project is not going to be derailed by an accident or incident;
• Business continuity: Projects have the potential to disrupt normal operations, even if they do not pose a risk of harm, potentially costing many thousands (if not millions) of pounds of lost income (e.g. a mechanical digger slicing through a telecommunications duct);
• Assessing the contractor: Clients may wish to verify the safety performance of contractors, particularly if it is a new relationship, or if problems have arisen. This will help the client determine whether, or how best to use the contractor in future. The results of site monitoring can also be used to determine whether a contractor is meeting project key performance indicators; and
• Public/environmental protection: A client may be particularly sensitive to risks to the environment, or general public (owing to the wide range of repercussions that might follow an injury to a customer, or patient, etc.) and therefore wants to verify that appropriate controls are in place. Having already determined that section 3 duties can apply to construction clients, it is plausible that a client could, in some instances, be prosecuted if their contractor harms a member of the public.

However, there are also potential pitfalls when clients visit, or monitor sites. These are best exemplified by an imaginary nightmare scenario involving the ‘uninformed’ client from Project A (the new car showroom).

Driving past his project, the client sees that the steelwork has started to go up, and so parks outside the site. He walks through the security control and on to site, ignoring reminders for him to don various items of personal protective equipment. The client then asks to see the site manager, who is currently supervising a lifting operation.

While the client is waiting for the site manager he instructs the first operative he sees to move a telescopic handler closer to the materials storage area (in order to be more efficient). The operative happens to be an untrained but enterprising apprentice, who eventually locates the key and moves the plant. Having temporarily stopped the crane lift, the site manager then meets the client, asks him to sign in, inducts him, and gives him appropriate PPE from a limited stock of spares. The client and site manager walk around the site, with the client making comments about the colour of the site hoarding and the landscaping plans.

After half an hour, the site manager is called to the gate when a delivery arrives but problems ensue, as someone has parked the telescopic handler in an unsuitable location and no one knows who has the key. The client grows impatient waiting and finishes the tour by himself, walking under a high-level welding operation. Looking up, the client is mildly impressed that the worker seems able to weld without wearing a mask. The client finally meets up with the site manager and tells him that he is pleased the site is so safe because “safety is the number-one priority on this project”!

The potential problems, risks and liabilities in this scenario should be self-evident. It will be equally clear that a whole range of controls should be in place to prevent a scenario like this from ever happening. However, experience, or just fear of these sorts of situations, may explain the reluctance that some construction professionals feel when asked whether clients should visit construction sites.

Collaboration and competence

Having established that clients will sometimes need, or want to monitor the performance of contractors, the following steps should help ensure that this is done in a way that promotes effective safety management.

Larger construction projects will normally have a risk register, which the whole project team has a hand in developing and managing.1 This can help clients and contractors assess the potential risks that both parties pose to one another, and can help a client evaluate the level of control and monitoring they should have over particular elements of the project.

If small projects are frequently taking place in an occupied site, the client may wish to define areas, or activities that it considers high-risk, e.g. working on roofs, and then implement arrangements to provide higher levels of control and monitoring for these tasks. They might, for example, be subject to some form of permit-to-work arrangement and associated checks.

Where monitoring by the client is deemed necessary, it should have a clearly defined scope. It should generally be restricted to matters over which the client has exercised control, or which relate to risks posed by one of the parties to the other.

For the various reasons outlined above, however, a client may wish to take a broader look at the management arrangements of the site (which is more akin to an audit than an inspection). A general ‘health and safety inspection’ (e.g. systematically checking for unsafe acts and conditions on site) should be left to the contractor.

The person carrying out the inspection will need an appropriate level of competence. They might need to determine, for example, whether the plans and management of a demolition operation sufficiently protect the client’s employees (and assets) in an adjacent, occupied building. This knowledge may mean the visitor notices uncontrolled risks to the contractor’s operatives. Although outside the scope of the inspection, these cannot be ignored, and the inspector has a professional duty of care to notify the contractor (and perhaps also the client).

Clients might therefore decide not to personally monitor the site but could expand the core role of CDM coordinators (or other consultants) to cover site monitoring. Clients who employ construction professionals may develop and use their expertise, so that they can check compliance with health, safety and environmental requirements, alongside quality standards. Inspectors should also be covered by adequate professional indemnity insurance.

A template or checklist can be used to provide a structure for visits, and may help clarify that the client is not undertaking some sort of general hazard-spotting exercise for the contractor. The Considerate Constructors scheme’s site checklist is a good example of this.11

Written records of visits, whether using templates or not, should be maintained. They provide auditable evidence of the steps the client is taking to monitor performance (and, over time, can help identify trends).

The client should agree with the contractor how and when the monitoring is done, and by whom. It should be done jointly with the site manager at agreed times, and the visitor must obey all site rules (e.g. attending a site induction, wearing appropriate PPE, and perhaps carrying an appropriate CSCS card, or equivalent).

This will help create a collaborative approach. Spot checks have their place but can be an unexpected distraction to a site manager (and unplanned visits may have to be postponed). The client and contractor should also agree how quickly they will respond to deficits, which usually depends on how serious the issue is.

Finally, the person undertaking the monitoring or inspection should avoid issuing instructions to operatives; concerns should generally be channelled through the site manager.

Clients are not always aware that they will sometimes need to monitor aspects of a construction project. By working positively and constructively with contractors, and taking a considered and proportionate approach to this exercise, clients can help ensure that a project is delivered successfully and safely for all.

References
1 Office of Government Commerce (2007): ‘Achieving Excellence in Construction Procurement Guide: Health and Safety’ – www.ogc.gov.uk/documents/
CP0070AEGuide10.pdf
2 Construction Clients’ Group: ‘Good practices for clients to follow when procuring construction work’, Information Sheet 4
3 Jonathon Scopes (2009): ‘Team CDM’, in SHP February 2009, Vol.27 No.2, pp40-42 – www.shponline.co.uk/features-content/ full/team-cdm
4 HSE (2007): ‘Managing Health and Safety in Construction: Construction (Design and Management) Regulations 2007 Approved Code of Practice’ L144
5 HSE: CDM FAQs – Clients – www.hse.gov.uk/construction/cdm/faq/
clients.htm#q9
6 HSE (2002): ‘Use of contractors: A joint responsibility’ INDG368 – www.hse.gov.uk/pubns/indg368.pdf
7 HSE (2010): ‘Fire Safety in Construction’ HSG168 – Appendix 4, para. 4
8 House of Lords judgment: R vs Associated Octel – www.publications.parliament.uk/ pa/ld199697/ldjudgmt/jd961114/octel01.htm
9 www.shponline.co.uk/incourt-content/ full/school-fined-25k-for-classroom-demolition-death
10 www.shponline.co.uk/incourt-content/ full/warehouse-asbestos-exposure-the-worst-seen-by-inspector-in-15-years
11 Considerate constructors: Site registration monitors’ checklist – www.ccscheme.org.uk/index.php/site-registration/site-managers-information-site-reg/registered-site-checklist-site-reg

Continuing professional development is the process by which OSH practitioners maintain, develop and improve their skills and knowledge. IOSH CPD is very flexible in its approach to the ways in which CPD can be accrued, and one way is by reflecting on what you have learnt from the information you receive in your professional magazine. By answering the questions below, practitioners can award themselves credits. One, two or three credits can be awarded, depending on what has been learnt – exactly how many you award yourself is up to you, once you have reflected and taken part in the quiz.

There are ten questions in all, and the answers can be found at the end of the this article. To learn more about CPD and the IOSH approach, visit www.iosh.co.uk/membership/about_membership/about_cpd.aspx

Questions

1 Larger projects will normally have:
a A staff uniform
b A lot of staff
c A risk register
d A canteen for workers

2 Construction work performed by contractors should have provisions in place by clients to:
a Carry out spot-checks
b Send written reports on safety
c Visit sites only if necessary
d Maintain the initial project management arrangements

3 The HSE’s guidance on the management of contractors is:
a INDG368
b IDNG368
c INDG358
d INDG268

4 The Olympic Delivery Authority undertakes checks of site activities:
a Monthly
b Weekly
c Annually
d Quarterly

5 A typical project in a hospital would need to determine contractors’ arrangements for:
a Access routes
b Site security
c Welfare facilities
d Fire protection

6 The R v Associated Octel Co. Ltd (1996) case was judged by:
a Lord McKenzie
b Lord Hoffman
c Lord Young
d Lord Hythe-Smith

7 Factors that could increase the need for monitoring contractors include:
a Client operations could pose a risk to the contractor
b Risks to the client’s employees
c Everyday, well-controlled hazards on site
d A lot of employees on site

8 A client may wish to monitor a contractor to ensure that there are provisions in place to:
a Protect the public
b Be able to close the business if necessary
c Protect assets
d See that the workers arrive promptly

9 A client has a right to access a site to view a contractor’s operations:
a Without using the appropriate PPE specified
b At any time s/he chooses, without checking in
c In the middle of the night
d In agreement with the contractor and complying with all safety measures in operation

10 Can a client issue instructions to a contractor’s operatives:
a Yes
b No
c With agreement of the site manager
d With consent of the operative’s trade union

Answers

1. C
2. D
3. A
4. D
5. A, B and D
6. B
7. A and B
8. A and C
9. D
10. B

Nick Bell is CDM manager in facilities at the University of the West of England.

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