Clients are increasingly told that health and safety is their job, but why? Surely it’s illogical to make customers responsible for the industry they employ
It seems to me that the industry is inclined to overgeneralise and then overestimate its clients. A representative of one of the industry’s supply-side groupings recently berated me for the absence of clients at an industry summit meeting to discuss the DTI’s consultation on improving payment practices and possible amendments to part two of the 1996 Construction Act and the Scheme for Construction Contracts.
I have been involved in the Construction Clients Group’s attempts to harvest client opinion on the key issues raised by the consultation. To be blunt, it was hard to persuade them to take any interest in questions as: “Do you agree that the requirement of section 110 (2) should be removed and that in its place the legislation should clearly define what is meant by ‘an adequate mechanism for determining what payments become due under the contract and when’?”
Who can blame them? Most will never have seen a section 110 (2) notice and have no idea what it is. If anything is issued, it will have been done by external consultants and most clients are not about to spend a day locked away with the supply side finding out about why section 110 (2) notices are important.
The proposed revisions to the CDM regulations following the Health and Safety Executive’s 2002 consultation document Revitalising Health & Safety in Construction also suggest a fundamental misunderstanding about clients.
The responses to the consultation apparently found that the attitude of clients was seen as the second biggest hindrance to progress in improving health and safety on site and most of those who responded to the consultation wanted clients’ legal duties to be increased.
It is difficult to understand this response. It is true that the focus of some large clients in the 1980s on health and safety prompted a marked improvement in the industry’s approach. But surely one-off clients, which make up most customers, cannot be blamed for what happens on site? Surely this is the equivalent of blaming the purchaser of a car – to use that rather worn analogy – for working conditions on the assembly line?
In response to the consultation, the HSE inevitably produced proposals that imposed duties on clients, but what is achieved by imposing statutory responsibilities on one-off or infrequent clients? In most cases they will not even be aware of them and, if they are, will not have the expertise to discharge their duties?
Blaming clients is the equivalent of blaming the purchaser of a car – to use that rather worn analogy – for working conditions on the assembly line
I perfectly accept that clients can encourage co-operation between project participants and actively emphasise the importance of health and safety in a general sense but most of them – including repeat clients – are unlikely to have the expertise to know, for example, how much time and resource are required for the design of a structure or for the planning and preparation for construction work (new regulation 7(2)(a)), or what are suitable arrangements for the review of the suitability and compatibility of designs (new regulation 7(2)(b)(ii)). Allocating responsibility to those without expertise does not seem a sensible way to ensure that health and safety is observed.
Plainly, the top clients listed in the monthly league tables in Building are regular and expert purchasers. A brief look at them demonstrates the wide diversity of what they are purchasing: from roads to buildings to civil engineering. But for all of them, construction is not their only preoccupation, or even their main one.
To take a private sector developer, its real interest is in acquiring the site, securing the planning and “doing the deal” on the completed building, whether it is sold on or let. For most private sector developers, the construction part of their business is where the “deal” becomes unravelled.
Many property developers and investors will go some way to avoid any involvement in the construction process. There are of course many exceptions: for example, developers that believe their involvement can make the design and construction process more efficient. Many of these developers use procurement routes, such as construction management, that allow them to be involved at a detailed level in the evolution of the building design and in the operation of their construction sites.
The fact that clients want to be involved in the design of the product is not surprising, but do most clients want to be involved in the construction process to the level the industry seems to expect? I think not.
Ann Minogue is a partner in solicitor Linklaters
Portraint by David Levene