CDM and HSE enforcement practice: a reminder
CDM 2015 has now been in force since April 2015. The responsibilities of dutyholders are becoming firmly embedded in the construction procurement regime. It is timely to remind ourselves of the possible sanctions for failure to comply.
Prosecutions (as these are criminal matters) under CDM are largely brought under primary legislation. The Health and Safety Executive (HSE) may take action for breach of The Health and Safety at Work Etc Act 1974 (HSWA). Companies and other organisations may be prosecuted, as may directors, managers and other officers.
- Unlimited fines
- Imprisonment for a period of up to two years, with or without unlimited fine
- Payment of HSE fees where HSE takes inspection, intervention or enforcement action, currently levied at a rate of £124 per hour. These fees are known as ‘Fees for Intervention’ or ‘FFI’.
Against this background, compliance with relevant codes of practice, guidance and standards will be key. However, HSE has confirmed that, unlike CDM 2007, there will be no Approved Code of Practice (ACOP) to support CDM 2015. Its policy is to issue ACOPs only in respect of prescriptive regulations. In the case of a risk management regime, like CDM, it will collaborate with industry sector representatives. Those sectors will issue their own guidance and standards which HSE will badge and support in practice.
The existence (or otherwise) of an ACOP is of some significance. ACOPs describe preferred or recommended methods that can be used (or standards to be met) to comply with regulations and the duties imposed by the HSWA. It is not compulsory to follow the guidance, unless specifically stated; but if you do follow it, you will normally be doing enough to comply with the law. If you are prosecuted for breach of health and safety law, and it is proved that you did not follow the relevant provisions of the code, you will need to show that you have complied with the law in some other way or a court will find you at fault.
It is to be hoped that a similar approach will be adopted where a dutyholder has followed industry sector guidance and standards that have been badged and supported by HSE.