A designer is defined under Construction Design and Management (CDM) legislation as an organisation or individual whose work involves preparing or modifying designs for construction projects, or arranging for, or instructing others to do this.
Designers under CDM are currently defined as architects, consulting engineers and quantity surveyors, or anyone who specifies and alters designs as part of their work. They can also include others if they carry out design work, such as contractors or tradespeople e.g. an electrician who designs the layout and specification of an electrical installation or even commercial clients where they become actively involved in designing in relation to their project. The term design is so generic it has caused a barrier to the registration of title.
A designer has a strong influence, particularly during the very early planning and design stages of a project. Their decisions can affect the health and safety of not only those contractors and workers carrying out the construction work, but those who use, maintain, repair, clean, refurbish and eventually demolish a building. Decisions such as selecting materials or components of a building can avoid, reduce or control risks involved in constructing, maintaining and using it after it is built.
Designer duties apply on all projects, including:
Designer duties apply as soon as they are appointed and when designs which may be used for construction work are started. While most design work is carried out during the pre-construction phase of a project, it is not unusual for it to extend into the construction phase. A designer should agree their scope with whoever has appointed them. SBID recommend that a provision on a daily rate is included in the Letter of Appointment to cover the requirement through procurement of design under CDM regulations. This may sometimes be described as Project Management of the design.
A designer must be able to demonstrate they have the health and safety skills, knowledge and experience (SKE), and where they are an organisation, the organisational capability, to carry out the work they are being appointed for. The level of SKE required should be proportionate to the complexity of the project and the range and nature of the risks involved.
Examples of demonstrating SKE might include:
Examples of demonstrating organisational capability might involve:
Designers must make sure the client is aware of the client duties under CDM 2015 before starting any design work.
Designers must make sure the client is aware:
Provide design information to:
Working as a designer for a domestic client is no different to working for a commercial client in the initial basics, client care, dealing with client funds, and H&S legislation. However, the domestic client’s legal duties are normally taken on by the contractor (or the principal contractor on projects involving more than one contractor) and the designer must work to them as ‘client’ under CDM 2015.
Alternatively, the domestic client can ask the principal designer to take on the client duties, although this must be confirmed in a written agreement. SBID recommends to its members and their clients that this instruction is formally appointed by both parties with an independent solicitor due to the legal implications and ongoing liabilities the appointment carries. Where the project involves more than one contractor and the domestic client does not appoint a principal designer, the role of the principal designer must be carried out by the designer in control of the pre-construction phase.
You have a common-law duty of care as an employee under your contract of employment. This means that you must exercise reasonable skill and care in your relationship with your employer and your colleagues.
In addition, the Health and Safety at Work Act 1974 (HASAWA) requires you to take reasonable care for the health and safety of yourself and other people at work. This extends to co-operating to enable the employer to fulfil its legal duty.
You must not interfere with or obstruct anything provided in the interests of health and safety at work.
An employee who is in breach of his or her duties (legal and general) under HASAWA may be liable to pay a fine on conviction. You may also be dismissed from employment for being in breach of a contractual duty to carry out work with proper care and skill – provided you were properly instructed about relevant safety measures and had been made aware that the interference could lead to dismissal.
Note: The content provided is general background information only, it should not be taken as legal or financial advice for any specific situation. SBID recommend you seek specific advice on your case from a solicitor. For further information please visit the HS Executive site: www.hse.gov.uk
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