The forgotten dutyholder

Kizzy Augustin highlights why competence is key to effective workforce management.

As we all probably know, contractors – including employers, employees, installers, designers, manufacturers and any construction site worker – have responsibilities under the Health and Safety at Work etc Act 1974 (HSWA) to look after the health and safety of employees and non employees and to ensurethat they are taking reasonable care for the health and safety of themselves and others that are affected by their acts or omissions at work.

Individuals also have the responsibility to cooperate with their employers to ensure compliance with their employer’s overarching health and safety duties. However, I have always been worried about the possibility of the ‘forgotten dutyholder’ for the purposes of health and safety legal compliance coming to the forefront again and my fears were proved right after a recent case of mine was brought to court.

The forgotten dutyholder is, in my mind, those that have responsibilities during a construction project but tend not to be prosecuted often for criminal offences under health and safety
legislation. Let’s look at section 6 HSWA:

• There is a duty on any person that designs, manufactures, imports or supplies an article or substance for use at work to ensure, so far as is reasonably practicable, that the article or substance is “so designed and constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned or maintained by a person at work”.
• The dutyholder also has to ensure that appropriate testing and examination of the product has been carried out to ensure that the product that they are providing is safe and without risks to health.

These are relatively onerous responsibilities, yet there have been very few prosecutions for this particular type of breach. There is a similar consideration for ‘forgotten’ or alternative dutyholders under Article 5(3) of the Regulatory Reform (Fire Safety) Order 2005, which considers liability for every person who has control of a premises for matters to the extent of their control of those matters – by virtue of a contract or tenancy agreement. 

I’m concerned enough that, in a post Grenfell world, many other dutyholders (including installers of products) will be caught out for failing to meet their obligations under safety legislation
– specifically the HSWA and the Construction (Design and Management) Regulations 2015 (CDM) – and prosecuted for their trouble.

My fears were made a reality when a few months ago, a client of mine was prosecuted by Lincoln County Council, where it was argued that professionals responsible for installing products could also be liable for a defective product by virtue of their installation under the General Product Safety Regulations 2005.

This seemed strange, as this particular piece of legislation was usually reserved for manufacturers or suppliers in a consumer law context. Here, a fireplace installer was being prosecuted for safety
failings because he is deemed to be a ‘producer’ of products. This has serious implications for all tradespeople and installers, who can now be prosecuted under the GPSR, even if the product
itself was perfectly sound.

The facts
My client was a fireplace installer who was being prosecuted as a ‘producer’ under the General Product Safety Regulations 2005 (GPSR) for supplying an unsafe product by virtue of its installation. Under section 2 of the GPSR, a ‘producer’ includes:
• The manufacturer of a product who is established in the EU
• A person established in the EU, holding himself out as the manufacturer, for example by selling private label products under his own brand (“own-branders”)
• A person established in the EU who reconditions the product

• A person established in the EU who represents a manufacturer from outside the EU
• Where there is no EU representative of the manufacturer, the importer into the EU
• Other professionals in the supply chain who affect the safety of the product.

“Other professionals in the supply chain” is not legally defined. it was on this point (ie whether the installer was an “other professional” for the purposes of the GPSR) that the case made the
ground-breaking ruling.

In his case, the defendant supplied and fitted fireplaces for a living. His work included the removal of old stoves, plates and chimney liners and replacing them with new equipment including flue liners and canopies. The defendant quoted the complainant for the removal of the current stove, plate and chimney liner and its replacement with a fire basket and fire back.

The old stove register plate and old chimney liner were removed by the defendant and the chimney was then swept before the new basket and back were installed.

An independent engineer who inspected the installation found that the fittings had been installed incorrectly and incompetently. The hood and flue liner were too small and did not comply with UK building regulations.

The local authority prosecuted my client under the GPSR and argued that whilst the fireplace was being renovated, the defendant installed a flue liner and a canopy in such a way to render them unsafe products.

We stated, on behalf of the defendant, that the safety properties of the product were not affected by the defendant’s activities. Such an act must involve a physical alteration of the properties of the product, so that in normal and foreseeable conditions of use, the item created a risk which was not consistent with a high level of protection for the safety and health of relevant persons. It
was also submitted that an installer only assumes responsibility for the safety of the product if they alter or interfere in any way with the item prior to sale to the consumer. It is accepted that a product can be rendered unsafe by the manner of its installation but only in so far as it is altered or changed in any material fashion.

The court’s decision The court ruled that a “professional (other) person” as defined in section 2 of the GPSR could (and did, in this case) include an installer because the act of installing a product can affect its viability and safety. Crucially, this is the case even if the product itself is free from defects.

Ultimately the defendant was found not guilty in this case. He won his case based on the facts (the installation was deemed incomplete – he was performing regular tests and diagnostic checks
during his works to rectify the problems with the chimney) and he therefore escaped conviction.

However, the approach by the prosecution and court raises serious questions about who exactly falls within the ambit of GPSR and who could be liable for providing defective products. Anyone who installs a product must be aware that this decision means they could be prosecuted under the GPSR for ‘providing an unsafe product’ by virtue of its installation. This should be taken seriously, as failure to comply with the GPSR can lead to fines and/or imprisonment. There is also the risk of potential prosecution for installers under the Health and Safety at Work etc Act 1974 for failing to conduct their undertaking in such a way so as to ensure the health and safety of non-employees (eg domestic clients, sub contractors or members of the public), which can also lead to significant fines and/or imprisonment in accordance with the 2016 Health and Safety Sentencing Guidelines.

How does competency help?
To avoid being subjected to enforcement action by the authorities, these ‘dutyholders’ may wish to seek specialist regulatory legal advice to assess the impact of such prosecutions, which may be on the increase in light of the recent focus on the effectiveness of UK building regulations and fire safety enforcement.

My client’s case highlighted the need to carry out work competently to avoid the suggestion that their work was potentially unsafe and incompetent due to the way their work was carried out. But
what do we mean by competence?

Since the revised CDM Regulations in 2015, we have seen the requirement for ‘competence’ replaced with a requirement for ‘skills, knowledge, experience and training’ and ‘organisational capability’. But is competence about even more than this? It may be slightly easier to demonstrate skills, knowledge and experience by way of reference to a universal framework that sets a benchmark within the industry, which seem to have been adopted by the Institute for Apprenticeships and Technical Education – particularly for apprentices:
• Skills: Practical application of knowledge needed to successfully undertake work activities.
• Knowledge: Technical training and ‘know how’ that the individual needs to understand how to carry out their duties.
• Experience: Enhanced knowledge or skill acquired by a period of practical experience.

Coupled with the recommendations made in the Hackitt review after the Grenfell fire that suggested that dutyholders should only make and accept appointments where the necessary skills, knowledge, experience and organisational capability are in evidence, it seems that competence will continue to play a big part in assessing whether someone is in breach of safety legislation in the event of an incident, or even just the presence of a risk of injury to relevant persons. One likely outcome of the Hackitt review is the increase in prosecutions, and a lack of competence or training will provide ammunition for enforcing authorities to criticise the dutyholder and prosecute under a raft of available legislation, which could result in large fines or even imprisonment being imposed.

In addition, the recent government review into building safety focuses heavily on working together: Co-operating, coordinating, sharing information and liaising with other dutyholders and the regulator. The sharing of ‘knowledge’ in this way can also demonstrate competence. This is why it is important to ensure that there is a strong awareness of safety issues on site and staff and site managers should be fully appraised of situations as they arise.

Limit the risk
This brings me on to my final point on how to limit the risk of liability for dutyholders in respect of safety breaches, by focusing on changes in culture or ‘attitude’. I understand that the finishes and interiors sector has been looking at workforce management and the development of teams in terms of skill, attitude, knowledge and experience (SAKE). It might seem like a new concept to introduce ‘attitude’ into the equation when assessing competency, but it isn’t as new as one might think.

The IOD / HSE Guidance (Leading H&S at Work) guidance document (www.hse.gov.uk/pubns/indg417.pdf) talks about senior management failings (in the context of corporate manslaughter)
including poor “attitudes, policies, systems or accepted practices”. The guidance also discusses the idea of celebrating good safety practice, and that will only occur with proactive, robust health
and safety management.

Many of the recent prosecutions against individuals relate to the skilled worker failing to perform competently in carrying out their tasks. Competency issues that arise from a lack of care when performing a work activity points to a lacklustre attitude that fosters bad habits and learned behaviours.

So, while my client was able to avoid a guilty verdict by confirming that he had not yet completed the installation and that he was maintaining contact with the client, others may not be so lucky. Most prosecutions are brought when the project is finished and by then, it can be tricky to defend criticisms based on competency.

The fact that enforcing authorities can now use consumer-based legislation for providing defective products (as well as HSWA and CDM for acting in an ‘unsafe’ manner) to prosecute installers or manufacturers is worrying – and only a proactive, competent dutyholder will be able to successfully defend such allegations.

Kizzy is guest speaker at the FIS London Contractor Forum on 5 November, visit www.thefis.org/events for more details