Should a Site be prohibited, not its Dutyholder?

We recently reported on a Scottish 2010 construction health & safety case that has come to court in March 2013:

but unusually, there is an important postscript to the incident.

It was not reported at the Aberdeen Crown Court hearing, probably due to it being sub judice, but this site had ‘form’ when it was under different ownership. Not only had there been no less than three previously-reported breaches of the health and safety regulations on the site in question, but one of them had resulted in a man’s death.

Union calls for a change to the Law

The former Grampian Hotel in Carmelite Street Aberdeen has been an extremely dangerous site: work there has been found to breach the safety legislation in June 2010, September 2009, October 2008 and July 2007.

As we wrote before, the most recent incident resulted in MK Builders of County Durham being fined £4,000 for breaches of working at height regulations – their workers had been simply throwing debris through unprotected holes in the floors down to ground level, despite others having to pass the open holes to access an outside toilet.

UCATT, the construction sector Union, now calls for an “urgent revision” of health and safety laws, citing this location as an example of a need for prohibition notices to apply to a site, not solely its dutyholder. This would seem to make sense – a site does not suddenly become any more or less safe because it has changed hands or a new builder has been appointed. Companies come and go while buildings (or potential building sites) tend to remain for much longer periods.

Previous fatal accident

This is thrown into stark relief by the fact that the September 2009 Aberdeen incident involved the fall from scaffolding and the consequent death of a 63-year-old man.

In all the four cases here, after HSE had stopped the work, the site changed hands to a new contractor: and under the current Construction Design and Management (CDM) Regulations, responsibility for safe site operation lies with the dutyholder.

So when the HSE imposes a Prohibition Notice, it is on this company, not the site itself, no matter how inherently unsafe it may be. As UCATT points out, existing prohibition notices are wiped off the slate, even if the previous problems still exist.

Harry Frew, regional secretary for UCATT Scotland, commented: “There will be many similar sites which have been mothballed due to a combination of safety problems and the recession. When these sites are re-started workers must be assured they are not entering a death trap. Clearly the existing regulations need to be amended if this is not currently the case.”

It remains to be seen whether the Government will act on this recommendation, but on the face of it, the proposed change should at least be put out to consultation to the industry to see if there are strong arguments against it.