On 4 December 2008, the Secretary of State for Work and Pensions announced an Inquiry into the Underlying Causes of Construction Fatal Accidents as a result of the view that there was an "unacceptable level of fatalities in the construction industry". Rita Donaghy was appointed Independent Chair, and published her report with 28 recommendations on 9 July 2009. A key focus of the inquiry is the need for a tougher approach to health and safety offending in the construction industry with heavier sentences for companies and individual directors.

The report is very wide-ranging and involves recommendations that touch on greater public sector involvement in procurement issues, continued support for partnership working, and renewed efforts to establish genuine consultative frameworks to encourage greater worker participation.

The report also calls for greater co-ordination and regulation of the construction industry as a whole, and supports the creation of a full-time Minister for Construction. There are also calls for a review of the adequacy of current curricula in covering design, health and safety awareness and risk management issues. The report also recommends that the remit of the Gangmasters Licensing Regulations should be extended to include construction (although this would require primary legislation).

However, a number of the recommendations explicitly call for tougher health and safety enforcement, such as the need to expand the resources made available to the Health and Safety Executive ("the HSE"); 'arming' building control surveyors with HSE-style enforcement powers; widening the scope of individual criminal responsibility for health and safety breaches through the creation of positive legal duties on directors; and providing robust guidance to the courts on the sentencing and disqualification of convicted directors.

The report repays careful reading for anyone involved in the construction industry, and is likely to increase the political pressure for tougher regulation. Construction fatalities, it states, should be made 'socially unacceptable' through increased publicity and heavier sentencing – particularly of individual directors.

Considerable criticism is directed to current health and safety culture in the construction industry, which is described as being undermined by the proliferation of disengaged 'contractors' rather than health and safety conscious 'employees'. The remedy, it suggests, is improving 'local oversight' through the better integration of safety-conscious trade unions into the industry as a whole. 

The small building and refurbishment sector is also described as giving rise to concern, particularly as many small projects are not notifiable to the HSE under the Construction, Design and Management Regulations 2007. The novel recommendation here is that criminal health and safety duties be 'embedded' into Building Regulations, with building control surveyors given enforcement powers, including the power to prosecute.

Individual directors though are a key focus of the report.  First, the report suggests that courts should be issued with clearer guidance "on the issue of specific responsibilities of directors to carry out corporate health and safety governance so that they can make appropriate judgements about the verdict or the level of fine or whether disqualification [under the Company Directors Disqualification Act 1986] is merited and, if so, for how long". The HSE Board and the Sentencing Advisory Council will both be reporting on the issue over the next 12 months.

Perhaps more significantly though, there are calls for the creation of new positive legal duties, backed by tougher sentences, to ensure that effective health and safety measures are taken by individuals. This would involve amending the Health and Safety at Work Act ("the HSWA") 1974 so as to impose a general duty on directors "to take all reasonable steps to ensure health and safety".  Currently, prosecutions of directors under section 37 of the HSWA 1974, require proof (beyond reasonable doubt) of 'consent, connivance or neglect' by the individual in the commission of an offence by their company. The suggested amendments would then make the prosecution of individuals far easier for prosecutors.

Although the recommendations are wide ranging and, if adopted, will see changes across the construction industry in relation to education, training, procurement and practice, the key message is that practises which expose workers to fatal risks must be made socially unacceptable. 

The proposed route it seems will be to make prosecutions 'personally unacceptable' to directors through the threat of heavy fines and imprisonment for breaches of their individual duties. Directors then would be well-advised to remind themselves of the possible new approaches to their health and safety duties when exercising their company responsibilities.

Iwan Jenkins can be contacted on 029 2038 5492 or by email.