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Wake-up call: The finger of responsibility

03 December 2018 by

Martin Cox explains the health and safety responsibilities of a hotel owner when on-site refurbishment or construction is taking place

The problem

As a hotel owner, you will constantly have some form of construction work being undertaken, be it repair, refurbishment or new build.

All construction work is legislated for by the Construction (Design & Management) Regulations 2015 (CDM 2015), and as a hotelier, caterer or restaurateur, why should you be aware of this? You will probably know about health and safety at work regulations, food safety legislation etc, but CDM 2015 is simply not your bag.

Example

You have problems with a roof and need it fixing, so you get a local firm to do the work, as they have done work for you before without problem. You tell them what you want done and they get on with it.

Unfortunately, workers on site feel that conditions are unsafe and contact the health and safety executive, who pays a visit and issues improvement and prohibition notices for a number of issues they find. As a result, you as a client end up in court, being prosecuted for breaches of various health and safety legislations, including CDM 2015.

Surely this cannot be right, because the contractor was responsible for what happened on his site, not you? You contracted him to do some work for you, so why are you being prosecuted and not him? After all, he is the expert on building and you are only a hotelier, so shouldn't be expected to know anything about it.

The law

Whatever your profession or occupation, as a commercial client, if you are commissioning construction work (and the definition of construction is very broad), then you need to be aware of the requirements under CDM 2015.

CDM 2015 places legal responsibilities on the three main roles: client, principal designer (PD) and principal contractor (PC). The last two are required where there is more than one contractor on site, including sub-contractors.

The role with the most responsibility is therefore the client, who, if they do not appoint the others in writing, retain the responsibilities of the others by default.

The above prosecution against the client acting as a PC was because there was no evidence that an appointment in writing was in place.

Ignorance of the law is no defence. If you do not have the knowledge on how to comply with the legislation, get proper advice and do not let any work start until you are sure you know what you are doing.

Previously the health and safety executive would have prosecuted the contractor, but with CDM 2015, culpability has increased, with investigations into the root causes of any failures or legal non-compliance. This means more scrutiny of clients' involvement.

Expert advice

Clients have a crucial influence over how projects are run, including management of health and safety risks. They are responsible for the following:

• understanding their role responsibilities;

• appointing competent people who can advise them;

• ensuring suitable arrangements for managing the project;

• providing appropriate pre-construction information as required;

• appointing the contractors and designers (including PD and PC) in writing;

• allowing sufficient time and resources for each stage of the project;

• ensuring the contractor prepares a construction phase plan before work begins;

• ensuring the PD and PC carry out their legal duties;

• providing suitable welfare facilities; and

• maintaining and reviewing the management arrangements.

Beware

Enforcement action will impact on your wealth and reputation.

The example is based on an actual event where the hotelier was fined £50,000 with more than £5,000 costs. Recent legislation has significantly increased the amount of fines and custodial sentences that can be meted out for breaches of health and safety-related legislation. You cannot rely on others to take the blame for your failures as a client.

Make sure you are aware of what constitutes construction work and take appropriate measures to not fall foul of the law by seeking competent, professional advice and assembling a team with the right skills, knowledge, experience and training for the work to advise you on CDM compliance.

Martin Cox is the head of health and safety and CDM at Pellings www.pellings.co.uk

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