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    REVIEW 2016: KEY DEVELOPMENTS FOR 2017 ONWARDS

    New approaches, simplification, health and more…

    During 2016 we sought to inform our readers on matters likely to be of interest to construction project teams working to secure safety and health through design and management.  We hope you have found our website content interesting and informative.

    Important developments and trends in 2016 which will continue into 2017 are signposted below.

    CDM Regulations – PD function not a role

    CDM 2015 regulations have now been in force fully for over 12 month (since October 2015). Our CDM 2015 Templates covering the Health and Safety File (HSF), Pre-construction Information (PCI), Construction Phase Plan (CPP) and Site Induction (SI) continue to be downloaded. The CDM 2015 Compliance Checklist summarising the key duties of all parties is also very popular.

    CDM 2015 was introduced after the EU took ‘infraction proceedings’ on the basis that the UK was not implementing the relevant EU Directive fully. Consequently, CDM 2015 applies to domestic projects and a CPP is required on all projects. HSE has called for a ‘proportionate’ and ‘common sense’ approach to implementing CDM 2015 with arrangements suitable for the nature of the project and hazards involved.

    The new Principal Designer (PD) function has proved controversial and the jury is out on whether the new function is making a substantial improvement in health and safety through design.

    HSE stress that the PD appointment is a business function and not an individual role. The Principal Contractor appointment has always been seen in this light. Organisations appointed as PD must bring together the skills, knowledge, experience and organisational capability needed to deliver the PD duties. HSE has failed to effectively communicate this vision of the PD and hence meaningless discussion of “training” the PD continues.

    The HSE Construction Sector Plan makes it clear that clients and designers, including the PD, will be in the HSE radar during 2017.

    Sentencing Guidelines – Increasing impact

    In November 2015 the Sentencing Council published new sentencing guidelines covering corporate manslaughter, health and safety and food safety offences. The guidelines were designed to ensure a “consistent, fair and proportionate approach to sentencing organisations or individuals”.

    During 2016 there has been a steady flow of substantial monetary fines at levels not seen before, particularly in cases involving larger organisations. This trend is likely to continue into 2017 with many organisations now seeing prosecution as a real business risk requiring financial contingency and improved risk management.

    Directors and Managers etc. – Rising accountability

    We have noted a rise in the number of HSE prosecutions involving directors, managers and others prosecuted alongside the corporate entity. There appears to be a much greater propensity on the part of the police to prosecute the offence of manslaughter by gross negligence and for HSE to apply the provisions of the HSW Act 1974 Section 37 which enables directors and others to be prosecuted alongside the corporate body.

    Fee for Intervention – FFI v Enforcement Notices

    The HSE Fee for Intervention (FFI) Scheme is disliked by many and one company is seeking to quash the HSE system for deciding FFI appeals. The judicial review hearing is expected to take place in the early in 2017. FFI has also come under fire because of the effect on the relationships between the regulator and the regulated.

    Meanwhile, FFI continues to generate substantial revenue. Our analysis of information requested from the HSE Fee for Intervention (FFI) team has revealed that the total value of FFI invoices issued in the construction sector has increased by over a quarter (26%) during the last 12 months of recorded data.

    The use of enforcement notices is falling whilst the use of the Notice of Contravention (a letter attracting FFI) is increasing.

    Risk Assessment – Control not Paperwork

    HSE is concerned that across all sectors “assessment paperwork” is being given precedence over “risk control” and consequently the regulator is looking to change its guidance on risk assessment.

    The regulator feels that many see the requirement to record significant findings of a risk assessment as “something separate from other things they do to manage their business”.  However, HSE stress that risk assessment should be part of day-to-day business management and the risk assessment can be part of an existing business document.

    HSE emphasise that risk assessment is not about creating huge amounts of paperwork – it is about identifying sensible measures to control the risks in your workplace.

    And putting those controls into practice!

    New Approaches – ‘Safety Differently’

    This year has seen the rise of strategies based on the ideas of Australian academic Sidney Dekker and his book Safety Differently published in 2014.

    The book argues that organisations face a new era which calls for a different kind of safety thinking which sees people as the source of diversity, insight, creativity, and wisdom about safety, not as the source of risk which undermines an otherwise safe system.

    Dekker calls for a kind of thinking that is quicker to trust people and mistrust bureaucracy, and that is more committed to preventing harm than to “looking good”.

    Major UK contractors are now actively considering how the ideas of Dekker might be put in effect in the UK involving a move away from the culture of controlling all risks under the banner of “zero harm” towards an approach which concentrates resources on severe and fatal risks.

    These approaches fit well with developments above regarding risk assessment and the desire to reduce bureaucratic approaches to securing positive outcomes.

    Safety and Health – Shifting the balance

    The HSE Strategy published in 2016 sees work-related ill-health as a problem for every section of society, with conditions ranging from cancer and other long-latency diseases, to stress and musculoskeletal disorders.

    Earlier prevention will involve a greater focus on health issues at work, while continuing to ensure that maintaining standards around safety remains a priority.

    The HSE Construction Sector Plan is set to be centred on health risks in 2017 onwards including a particular focus on occupational lung disease and musculoskeletal disorders.

    And Finally …

    Best wishes to all our readers for 2017. Do let us know if there are other important matters which you feel are worth airing on our website during the next 12 months.

    Philip Poynter

    5 January 2017

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