‘Whistle blowing’ clause applies throughout a CDM 2015 project?
The General Duties imposed by CDM 2015 include a short “reporting danger” clause which has attracted little attention. Regulation 8(5) requires that:
“A person working on a project under the control of another must report to that person anything they are aware of in relation to the project which is likely to endanger their own health or safety or that of others.” (We have underlined key words)
The natural meaning of “person” is an individual human being. However, within statutory regulations the definition of “person” includes a body of persons corporate or unincorporate.
The clause refers to a person “working under the control of another”. Obvious examples are employees under the control of employers and contractor organisations working under the control of the project Principal Contractor (PC).
Guidance sheds minimal light
The HSE Guidance L153 provides the following advice on Regulation 8(5) at para 68 which states:
“Everyone involved in a project (including workers) has a duty to report instances where they or others are working in a way that puts them or anyone else in danger. Any instances must be reported to the person in control of the work. The person in control should encourage workers to stop work and report dangerous conditions when they see them.”
The Guidance does not add a great deal to the words of the regulations.
For example, how far does Regulation 8 require designers to report such matters to the CDM 2015 Principal Designer (PD) who is the designer “with control” over the project pre-construction phase?
The PD is responsible for planning, managing and monitoring avoidance and reduction of foreseeable risk during the pre-construction phase. Regulation 8 therefore begs further questions, for example:
- Does Regulation 8(5) apply to “danger” identified during the pre-construction phase?
- Are designers (individuals or organisations) required to report “danger” to the PD?
- Should the PD establish a system to encourage and facilitate such reporting?
If these questions are answered in the positive CDM 2015 has created a health and safety “whistle blowing” requirement which applies during both construction and pre-construction phases.
CDM 2015 Information and Templates
See CDM 2015 Survey Results for the findings of our CDM 2015 Five Minute Online Survey.
We have published a great deal of further information and templates designed to support Clients, Designers, Principal Designers/Contractors and Contractors in meeting their duties under CDM Regulations 2015.