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Ensuring safe practice in the supply chain

Main contractors could face manslaughter charges over their subcontractors’ failings. By Darran Hughes

Nearly one year on, firms are still getting to grips with the increased responsibility placed on them by the Construction Design & Management Regulations (CDM) 2007 to plan the management of safety risks on all projects right from initial design through to completion.

Although the paperwork is less burdensome, there is now less scope for hiding behind the letter of the law by applying exemptions due to the size of project or failing to manage risk because the law was not explicit.

And as these regulations mark their first anniversary in April another potentially more worrying piece of legislation emerges in the form of the Corporate Manslaughter Act. This will make it easier to charge firms with Manslaughter in the event of a site death, leaving them open to fines of up to 10 per cent of turnover and a reputation-destroying publicity order.

No longer will it be necessary to identify a single ‘controlling mind’ at the top in order to make the charge stick. Any significant gaps in a firm’s safety procedures could be enough to convict, if they can be linked to te incident concerned.

Failure to comply with CDM ’07 or a slack system for vetting sub-contractors could, in the event of a site death, leave a firm vulnerable to a Manslaughter charge.

CDM ’07 strengthens the crucial requirement for co-ordination and co-operation on sites with multiple contractors and stresses the need for a single business entity to guarantee this. Fundamentally it places greater onus on developers and contractors to verify that the firms they engage are sufficiently experienced and competent for the job.

It is this sub-contractor link in the chain that could prove the Achilles Heel of many otherwise safety-conscious firms. Interestingly the CDM ’07 regulations were accompanied by HSE guidance on methods for pre-qualifying sub-contractors by checking for documentary evidence of good practice.

The net effect of these and other regulations is that main contractors are far more likely to be held accountable for the safety failings sub-contractors – a fact underlined by recent court cases where both parties were heavily penalised.

This pressure on contractors to vet those they engage, and on sub-contractors themselves to prove their credentials, has boosted the popularity of third party assessments by independent health and safety professionals. An estimated 20% of sub-contractors now belong to at least one pre-qualification scheme.

These systems are designed to help main contractors engage only those sub-contractors with a proven safety commitment and reduce the time involved in repeated vetting.

Some accreditation schemes will continue to apply higher entry standards than others to meet the requirements of their clients or the level of risk for those trades they assess. But the challenge now lies in agreeing common industry-wide vetting criteria that would persuade more firms to adopt this approach. The major pre-qualification service providers are currently working with HSE to achieve this.

Strengthening this weak link in the safety chain would not only protect those working on site but would greatly reduce the vulnerability of major construction firms in the face of April’s new Corporate Manslaughter Act.

Darran Hughes is operations director for the SAFE contractor assessment and accreditation service at the National Britannia Group.

A corporate concern

Is your company ready for the changes to health & safety law? By Judith Seddon

When the Corporate Manslaughter Act 2007 comes into force in April, health and safety must be integral to your culture. Firms caught contravening health and safety laws will be subject to greater scrutiny. Juries will be encouraged to look at internal practices to assess attitudes towards safety enforcement and control.

Guidance issued by the Institute of Directors and HSE give three principles to ensure good performance: strong and active leadership; worker involvement and assessment and review.

A business should consider:

  • Is your health and safety policy adequate in terms of the risks faced by employees, customers and others who could be affected?

  • Are employees involved in decisions affecting their health and safety?

  • Is health and safety regularly discussed at board meetings?

  • In larger companies, is there a health and safety director?

  • Are arrangements adequately resourced?

  • Is competent advice taken and followed?

  • Is compliance monitored and are breaches properly addressed?

  • Are preventative and protective measures effective?

  • Does the board receive regular reports on workplace safety?

  • Is performance reviewed and are weaknesses addressed?

The prospect of limitless fines should encourage you to get your house in order.

Judith Seddon is a business and regulatory investigations partner at Russell Jones & Walker