Loss Prevention Alerts

Loss Prevention Alert No 17 - THE OBLIGATION TO CONDUCT RISK ASSESSMENTS

This loss prevention alert has been produced by the Loss Prevention Working Group (LPWG) of the AGS.  It highlights issues that the LPWG considers may be of relevance to members.  It is not intended to provide a definitive response to any issues and before taking action members should consider carefully whether they need to seek independent legal advice.


There has been a tendency, over the last few years, for those in the construction industry to view compliance with the Construction (Design and Management) Regulations 1994 (CDM) as being a full discharge of the particular company's obligations under health and safety legislation. This is a dangerous heresy.  Firstly, compliance with CDM does not replace the other obligations set out in health and safety regulations. And the Health & Safety Executive are focusing increasingly on those other duties given that there has been no very obvious downward trend in construction site accidents following the implementation of CDM.  Indeed, some argue that CDM is essentially a papering exercise and it is possible for a highly dangerous construction site to be fully CDM compliant.

Many of those in the construction industry do not seem sufficiently aware of the obligations to conduct risk assessments as now set out in the Management of Health and Safety at Work Regulations 1999 ("the Management Regs").  These regulations impose duties which are surprising in their breadth.

Generally, undertakings accept that they have obligations to look out for the health and safety of their employees as well as that of their customers and visitors. What many though find surprising is that they have obligations to look out for the safety of the employees of their independent contractors even when they employ those independent contractors because of their specialist knowledge.  Under Regulation 3 of the Management Regulations:  "Every employer shall make a suitable and sufficient assessment of (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking."  So for example, consider a consultant who is employed on a design and build basis to carry out site investigation works. That consultant delegates the intrusive drilling work to a specialist contractor. Even if the consultant is not paid to supervise the work of the contractor, regulation 3 imposes a duty on that consultant to assess the risks arising from the contractor's activities which must include the risks to the contractor's own staff.  Is the contractor's work part of the consultant's undertaking?  Undeniably it is because the contractor is merely discharging for the consultant obligations the consultant owes to the ultimate client.  In this case, the consultant would commit a criminal offence if he did not conduct a suitable and sufficient risk assessment. 

Of particular relevance to the construction industry is Regulation 11 of the Management Regs.  This states that "Where two or more employers share a workplace (whether on a temporary or a permanent basis) each such employer shall …" co-operate with the other employers to ensure compliance with health and safety law, co-ordinate the respective measures they are taking and inform the other employer's staff of relevant risks to their health and safety.  Consider now a fairly typical construction site where employer's representatives, contractors' and sub-contractors' staff as well as design consultant and those carrying out supervisory functions are all present.  Undeniably, all of these employers will be sharing a workplace so regulation 11 applies. Again, breach of regulation 11 is a criminal offence.

Even away from the construction site setting, geoenvironmental consultants and contractors should focus on the breadth of the regulations.  Contemplate the fairly common situation where a consultant employed by a potential purchaser of a site is asked to conduct site investigations as part of the due diligence exercise.  Obviously, the consultants and contractors employed by the purchaser will need access to the vendor's property. In this case, the risk assessment conducted by the consultant or contractor must include not only the risks to themselves but also the risks to others such as trespassers, the emergency services and, most obviously, the employees of the vendor company who might still be working on the site.  Equally, the vendor will need to conduct a risk assessment not only to assess the risks to his employees from the work but also the risks to the contractors’ and the consultants’ staff.  For example, who will deal with the risk of identifying any relevant services so as to ensure that the contractor's staff do not suffer injury during drilling work?  Again, regulation 11 will be relevant as undeniably the vendor and the purchaser's consultants and contractors are sharing a workplace.

The ramifications of not attending properly to the requirements of the Management Regs can be serious.  Any company which has failed to conduct a suitable and sufficient assessment of risk will find it hard to show that they have discharged the general obligations set out in the Health and Safety at Work Act to do all that is reasonably practicable to secure their health, safety and welfare of employees and others that come into contact with their undertaking.  In the event of a fatality, the failure to conduct risk assessments will be used by prosecuting authorities as evidence of gross carelessness which can go some significant way to helping the prosecution establish the elements of corporate manslaughter. 

Prepared for the Members of the AGS by Steven Francis, DLA

Date of Issue: 20 December 2001