Legal commentary: Health and safety - after the forum

As regular readers of CJ will be aware, the UK construction industry's health and safety record continues to be the focus of critical attention. The latest statistics released by the Health & Safety Executive (HSE) make grim reading. Fatalities this year have already surpassed the figures from 2006/7 which, at 77 fatalities, was itself a rise of 28% and the highest death toll for five years.

Reports of injuries or deaths through crane, scaffold or demolition rig collapses now appear to be a daily occurrence and no wonder when the HSE has announced that as many as one-third of construction sites put workers lives at risk.

However, it is clear from the recent Safety Forum held by the Department of Work & Pensions and attended by employers, industry bodies and unions that health and safety is now a political issue, with the government committed to halting what it views as an unacceptable surge in construction deaths.

Falls from height is the most common type of accident, comprising 19% of fatalities, and a spate of recent crane and scaffolding collapses continue to reinforce this.

The Working at Height Regulations 2005 were introduced precisely to improve safety in this area, placing duties on employers, the self-employed and building owners to ensure proper risk assessment, correct selection and use of equipment, assessment and competence of workers to use equipment and adequate inspections and maintenance arrangements.

However, the HSE felt compelled to reinforce these and issued a safety alert in October 2006 emphasising the need for thorough examination of equipment with pre-use checks and proper maintenance systems.

Another apparent factor in the increase in fatalities has been the continuing rise in the number of migrant workers. The HSE's official figures concluded that in 2006 migrant workers made up 12.9% of the construction workforce, but these figures are likely to be far higher in the informal economy.

Again a recent CJ poll showed that 97% of readers believed that immigrant construction workers are not sufficiently aware of site health and safety issues. Policies need to be adapted to take into account the greater risks migrant workers can face due to factors such as language or other cultural barriers together with a lack of awareness of rights and irregular contracts.

Guidance is now available from, among others, the TUC, which has published a safety and migrant workers guide containing practical advice in respect of protecting their health and safety. Unions have begun to run basic language courses and ConstructionSkills now also provides the 'Kickstart' site induction in multiple languages for migrant workers.

It is hoped these measures will lead to improvements in this area.

Framework for Action

The specially convened Safety Forum agreed a 'Framework for Action', setting out ways that all parties can reduce construction deaths by working together, promoting training and sharing best practice. Key measures include extending the requirement for all site workers in the housebuilding sector to carry a CSCS card and making sure all sites have union-appointed health and safety representatives.

The Strategic Forum Health & Safety Task Group will now meet regularly and report to the government on progress by the end of 2007. This comes against a backdrop of statutory changes already introduced throughout 2007, which may start to have an impact against organisations that continue to flout existing health and safety requirements.

The new CDM Regulations place greater emphasis on construction clients to actively manage their team's approach to health and safety, including the need to verify the competence of its project team with increased criminal penalties and greater scope for civil liability for breach of these statutory duties.

Also the Corporate Manslaughter & Corporate Homicide Act 2007 comes into force in April 2008, creating a new offence of corporate manslaughter in England and Wales, meaning it will become far easier to secure convictions against organisations where fatalities have arisen as a consequence of management failures in complying with health and safety legislation.

In its draft 'Strategy for Sustainable Construction' published in July, the government has set out an objective of reducing the rate of fatal and major injuries by 10% by 2010. Progress made through the Strategic Forum will show in the coming months whether the industry is up to this challenge.