Owners beware - Don’t ignore your health and safety obligations
The importance of understanding health and safety obligations.
If you are thinking about carrying out a home renovation project, or even if you own a construction business, then there are some important lessons to learn from a recent case handled by our health and safety team. The case highlights that it is not just construction businesses who are responsible for the health and safety of workers, but individuals who appoint a competent builder to manage a construction project in connection with their own business (whether the business operates for profit or not) can find themselves personally responsible too.
In June 2015, Mr A started construction work at his property. He wanted to build a rear extension and dig a basement to create enough space to move in with his wife and children. Mr A had a property lettings business and had bought the house through his company; although it was always his intention to live there with his family.
Mr A had never been involved in a major construction project before, and so he appointed an experienced builder, who had been recommended by a friend. He also appointed a specialist company to oversee the project and ensure compliance with any legal obligations under health and safety laws. However, he wrongly assumed that his obligations ended there, and that the professionals had things covered – a mistake that ended up with him being prosecuted and receiving a criminal record.
A couple of months into the project, inspectors from the Health and Safety Executive (“HSE”) visited the property after being informed about potentially unsafe working conditions by a neighbour. When they arrived, they found that the basement walls were not supported, the basement was flooded with an electric pump sitting in a pool of water, and there were risks of workers falling from a plank of wood, which was being used as a walkway across the basement. The builder was told to stop work, however, Mr A was reassured by the builder’s promises that he would sort everything out.
Under the Construction (Design and Management) Regulations 2015 which applied to this project, the person for whom the construction project is being carried out has various legal duties, including a duty to manage the project and ensure the health and safety of those involved. Breaching these duties is a criminal offence.
However, a distinction is made between “domestic clients” (individuals who have construction work carried out for them that is not done in connection with a business – usually work done on their own home) and building professionals whose business is in construction. The domestic client’s duties will normally pass to their main contractor and designer (unless a separate agreement is made). However, Mr A’s situation was unusual because the property had been purchased by his property lettings company; although Mr A paid for the project out of his own pocket.
It also turned out that the builder had already been involved in construction projects at a number of other nearby properties; all of which had unsafe practices. As a result, the builder was already on the HSE’s radar and the HSE was considering prosecuting him. Mr A was asked to provide a statement to help the HSE. However, he decided that he did not want to get involved and so ignored the letter. The HSE later made an official request to Mr A to attend a formal interview under caution and to produce certain documents. Again, both requests were ignored.
Along with the builder, the HSE subsequently prosecuted both Mr A and his company. This was on the basis that the company had failed to make suitable arrangements for managing the construction project and that, in his capacity as a director of the company, this offence had been committed due to Mr A’s neglect, connivance or consent. At this stage, Mr A sought legal advice. The case went to trial in the Crown Court, and both the company and Mr A were convicted. The company received a fine.
The lessons to be learned from this case are that, firstly, you must ensure that anyone who you appoint to work on a project such as this is competent, and that you understand your own health and safety obligations. Secondly, you should never ignore involvement by the HSE, and thirdly you should always take legal advice at an early stage. In this case, had Mr A taken early legal advice and realised the potential implications of the HSE’s involvement, it is likely he would have co-operated with its HSE investigations, and so may have avoided prosecution. Even if conviction is inevitable, taking early legal advice can result in the sentence being lower than would otherwise be the case.
News & Insights
Bahrain: Construction & Engineering Law 2019 - Paula Boast writes for ICLG
Considering Crystallisation: What dispute should (or can) you refer to adjudication?
Employer and Contractor enter into a contract, and everything seems rosy until unresolved claims start escalating.