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Are you stuck in the CDM Novation mouse trap?

Are you stuck in the CDM Novation mouse trap?

Let’s be clear – contracting out a job through novation, contract switch or by collateral warranties does not mean contracting out your health and safety duties. Contracts cannot substitute statutory instruments for CDM compliance. You are still liable for prosecution in the event of an accident if it remains within your undertaking.

If you think otherwise, you’re stuck in confirmation bias.

Any good NEBOSH course will tell you a physical act or failure to act actus reus can still lead you to jail regardless of the contract. This was evident in the Allied Domecq case when HSE inspector Guy Widdowson said;

Allied Domecq, as the warehouse owner “could not contract out its health and safety responsibilities just by outsourcing the roof work, the company should have shown more responsibility by making sure the risk assessment was relevant and adhered to”. Allied Domecq were ordered to pay £276k.

Under CDM 2015, a designer is any person who prepares or modifies a design (including drawings, specifications and bills of quantities) relating to a structure (including scaffolding or a supporting structure), or a product or system intended for a structure. Any person who instructs a person within his control to do so is also a designer. The term is defined very widely increasing potential legal liability.

Discharge your CDM 2015 duties by choosing a course that will cover practise and theory. Click here.

 

Definition – novation

The substitution of a new contract for an old one. The new agreement extinguishes the rights and obligations that were ineffect under the old agreement.

Allied Domecq case

One of the latest high profile cases featured Allied Domecq, global drinks maker. A roof contractor employed and outsourced by Allied Domecq was involved in a fatal accident where he fell six metres through a fragile skylight at a warehouse in Kent. When referring to the inident, HSE inspector Guy Widdowson found that no health and safety measures had been put in place to prevent the accident, “there were no crawling, scaffolding boards, harnesses or nets” and astonishingly none of the above had been used for the past 9 years.

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