Designers are increasingly liable for health and safety breaches, and are increasingly finding themselves in the dock as a result. Here's how to stay out of trouble
Health and safety prosecutions over the Past 10 years have generally been against contractors and clients. However, more recently there has been an increase in the number of prosecutions against professionals acting as designers.

This reinforces the importance for designers of complying with the Approved Code of Practice as well as regulation 13, the designers' obligations under the Construction (Design and Management) rules.

The approved code provides detailed practical guidance on how to comply with the regulations and has from the beginning had a special legal status. When it was first published in 1995 the position was as follows: if you were prosecuted for breach of health and safety law and it was proved that you had not followed the relevant provisions of the code, a court would find you at fault, unless you could show that you had complied with the law in some other way. The burden of proof was on the designers; they had to show that they had complied with the code or that acceptable alternatives to it.

In the revised code, which came into force on 1 February last year, the material to which this special legal status applies is set out in bold type, but there is further guidance in normal type.

This guidance is not compulsory and the code says designers are free to take other action. It notes, however, that following the guidance would normally be enough to comply with the law. It also states that inspectors may refer to this guidance as illustrating good practice. Thus the safest course for designers is to demonstrate compliance with both.

The revised code deals with hazards in design and provision of information. Some might be surprised by the detail

The revised section on regulation 13 has more than doubled in size. The code material with special legal status deals with the hazards in design and with the provision of information. Some designers may be surprised at the detail. Examples include:

  • Designing out health hazards by specifying less hazardous materials, for instance, solvent-free or low solvent adhesives and water-based paints.
  • Avoiding processes that create hazardous fumes and vapours.
  • Specifying materials that are easy to handle.

The designer's duty to explain the client's duties to the client has been expanded. The first three sections of the code must be drawn to the client's attention along with the Health and Safety Executive leaflet Having Construction Work Done? Duties of Clients under the Construction (Design and Management) Regulations 1994.

There is now specific guidance for the client that has special legal status. This states that clients must make arrangements to ensure that projects are properly managed and that the structure is designed and constructed so construction is carried out safely. They must ensure that the project allows enough time for design, planning, preparation and construction work, so that the project can be carried out safely and without risk to health and that there is monitoring to ensure the work is undertaken safely.

The emphasis of the revised code is on realistic project programmes and adequate time with earlier appointment of key people, early identification and reduction of risks and provision of health and safety information from the start of the project through to maintenance and eventual demolition. This could conflict with a client's desire for a tight programme.

The ability of the designer to comply with the regulations will depend to some extent on the client complying with this guidance and with the duties imposed on it by the regulations. Therefore, appointments of designers should require the client to comply with its obligations under the regulations just as designers are required to comply with regulation 13.