Are the HSE using CDM as a Trojan horse to reinforce a regulatory hold over the events industry? Whereas their actions to date have at times suggested this, I do not believe on balance this is the case. Notwithstanding, whilst this reflects current intentions we cannot predict how this will influence the actions of individual inspectors at events many years from now.
How do you reconcile the HSE’s stated intention for a proportionate approach with the fact that CDM is none the less criminal law requiring compliance by even the smallest event? At a recent meeting I asked the HSE whether a couple planning an extravagant wedding with a live band on stage had Client duties under CDM. It was not a flippant question as a heavy handed approach will drive away this business. The answer is that under CDM as it stands they do. The HSE maintain that they will take a proportionate approach but they have also been clear that they will not exempt any event or event related activity, however small. In my view the draft guidance misses the opportunity to clarify what is meant by proportionality so it is left to the duty holder to figure out to what extent this law applies to their event.
How is it possible to draft and agree guidance which is fit for purpose before the 6th April with only a few weeks to go? The HSE acknowledge that it is very unlikely that guidance will be published before CDM comes into force on 6th April 2015. Whilst they have undertaken to consult widely, the events industry will have to live with (and pay for) the consequences of this guidance for the foreseeable future so it will be important to get it right.
Will it cost more?
Much of the debate has been around role mapping and administrative issues that in themselves would not significantly increase costs. There are possibly areas where HSE scrutiny in a CDM context would challenge current practices thus requiring a change in approach and increased costs or risk of prosecution.
It is possible that an increased regulatory burden will be self-inflicted. Post 6th April there will be no shortage of persuasive health and safety consultants willing to sell CDM solutions to the uninformed. We do not want a wedding couple having to discuss the CDM plan alongside menu options! Venues may also be tempted to create a CDM buffer by tightening the rules unnecessarily. Whilst this is only likely to significantly affect smaller events these things have a habit of taking root.
Ultimately I have never encountered a situation of new regulations costing less so it would be sensible to budget for increased costs.
What are the non-issues?
Notification and technical compliance. The HSE say that they will leave it to the Client to determine whether or not an event is notifiable. They were clear that they would not pursue an employer merely for failure to notify (or any similar technical breaches of CDM) if the substance of the health and safety arrangements were satisfactory.
Transition. There is no transition period so CDM applies from 6th April. The HSE acknowledge that it will take some time for the events industry to be able to demonstrate compliance. Having gone to such lengths to persuade the events industry of their benign intentions they are unlikely to mount a regulatory raid on the industry before we could be reasonably expected to prepare ourselves.
Will individual managers be more liable for prosecution under CDM?
Managers at all levels may have increased duties to perform on behalf of their employer but would be no more personally liable in criminal law than they would be for any other health and safety regulation. Those at event director level and above however should review their responsibilities and should be cognisant of the provisions of Section 37 of HASAWA for failings as a director which could have contributed to significant breaches of relevant health and safety law.
The HSE’s assurances of proportionality cannot be guaranteed and it must always be remembered that CDM is criminal law and places very specific duties on specific organisations which, in the context of events, will be on easily identifiable individuals. It may not, in the end, significantly increase the regulatory burden but it will shift the emphasis on whom corporately or individually (as an employee) that burden falls.