This briefing advises on legal requirements and good practice for construction work in schools and provides a stage-by-stage guide to the role of safety representatives. It is concerned chiefly with building on existing school sites rather than construction of new school buildings although there are a number of considerations in common.
Making construction work safer
Building activities in schools potentially pose a substantial risk to the health and safety of staff and pupils. NEU school safety representatives can play a vital role in ensuring that employers, school management and contractors follow proper procedures and adopt all necessary safety precautions so that the important work of bringing buildings up to standard is carried out with minimum inconvenience, disruption and risk.
The key principle in this guidance is the importance of separating building work from school activities and putting precautions in place to protect pupils and staff. Appendix 1 sets out a checklist of action points for safety representatives, and Appendix 2 lists the specifics which must be provided to the HSE for all notifiable projects. Appendix 3 suggests practical guidance on precautions which should be adopted to minimise the risks associated with construction projects and Appendix 4 sets out the identity of the employer in different types of school.
Legal requirements and duties
The duties of employers, contractors and others in relation to building works generally are laid out in three key pieces of legislation:
- the Health & Safety at Work etc Act 1974
- the Management of Health and Safety at Work Regulations 1999
- the Construction (Design and Management) Regulations 2015 (CDM regulations).
The first two laws impose general duties of care on employers and others on all aspects of health and safety, requiring special precautions to be taken during construction work when risks to health and safety are generally increased. The CDM regulations flesh out these general duties of care by imposing specific requirements during the planning and execution stages of the construction process and by specifying particular areas in which precautions must be taken. They apply to all construction projects, but there are different conditions depending on the scale and size of the works, and actions taken should always be proportionate to the risks in the construction project.
Health & Safety at Work etc Act 1974
Under the 1974 Act, employers have duties of care to employees under section 2, duties of care to pupils under section 3, and duties of care to contractors’ staff under section 4.
Contractors working in schools have duties of care to their own employees under section 2, duties of care to school staff and pupils under section 3, and also duties of care to other contractors under section 6.
Governing bodies have duties of care to school staff and pupils under section 4, especially where they are responsible for letting the contracts.
Management of Health and Safety at Work Regulations 1999
Under these regulations, employers must undertake risk assessments in relation to activities undertaken on the premises and revise them in order to keep them up-to-date whenever there
are significant changes in circumstances. The start of building activities on school premises will mean that the new range of risks must be assessed and any appropriate additional precautions taken
Construction (Design and Management) Regulations 2015
These regulations came into force on 6 April 2015, and replace the earlier CDM Regulations 2007. Transitional arrangements have been put into place for any projects already in progress when the new regulations were introduced. These are detailed in the Health and Safety Executive (HSE) guidance Managing health and safety in construction, available here.
The CDM regulations describe the roles of ‘duty holders’ in construction projects, some of which are different from the 2007 regulations and the main changes are detailed below. For the purposes of this document, the main duty holder role related to schools is that of ‘client’ as this will be the school employer or body that is letting the contract. For instance, this will usually be the local authority in maintained schools. Appendix 4 sets out who the employer is in each type of school. The other duty holder roles are designers, principal designers, principal contractors, contractors and workers.
If the construction work is due to last longer than 30 days with more than 20 workers working at the same time, or will involve 500 person days of work, this is deemed notifiable and the HSE must be informed in writing of the project, as soon as is possible and prior to the work commencing. Anything smaller than the conditions stated above is deemed non-notifiable, and the HSE does not need to be informed.
It is the responsibility of the ‘client’ to notify the HSE, although they may need assistance in compiling this information. Appendix 2 sets out the information which must be notified to the HSE. This is a change from the earlier regulations, as it was previously the role of CDM co-ordinator to make any notifications to the HSE.
One of the main changes of the 2015 regulations is that the previous CDM co-ordinator role no longer exists; it has been replaced by the principal designer role for any projects where there is more than one contractor. It is important to note that this is not a direct replacement and the roles and duties to be carried out are different.
The principal designer is responsible for managing and co-ordinating all planning and design work. They must maintain a health and safety file throughout the project, which is handed to the client once the works have finished, for them to retain.
If the project is to involve more than one contractor, a principal contractor must also be appointed by the client. They are responsible for planning, managing and co-ordinating the construction work.
There are a number of duties that clients must undertake to ensure effective health and safety during construction projects, and they are listed below. More detailed guidance is available in the HSE publication A short guide for clients on the CDM Regulations 2015 here.
Appoint the right people at the right time – if more than one contractor is being used, the client must appoint a principal designer and principal contractor, and this must be done in writing. They must have the skills, knowledge and experience to be able to identify, manage and reduce health and safety risks.
2. Ensure there are arrangements in place for managing and organising the project – the principal designer should identify potential risks when planning the project and take steps to avoid them and the principal contractor should manage the risks when on site. However it is useful for the client to be aware what the potential risks could be, in relation to schools. For instance, the majority of schools contain asbestos, so unless the client knows that there is no asbestos present, then a demolition/refurbishment survey must be carried out prior to works commencing, and asbestos removal carried out as required.
3. Allow adequate time – this ensures that work is not rushed and of poor quality.
4. Provide information to your designer and contractor – they will need to know what the client wants built, the site details and any existing structures or hazards that are present (eg asbestos). This could be done via a ‘client brief’.
5. Communicate with your designer and contractor – it is good practice for the client to meet with the designer and contractor throughout the project to ensure that any problems and health and safety issues are picked up and discussed.
6. Ensure adequate welfare facilities on site – the client should make sure that the contractor has made welfare arrangements on site for their own staff.
7. Ensure a construction phase plan is in place – this is created by the principal contractor (or contractor if there is only one) and explains how health and safety risks will be managed. The client must ensure work does not commence until such a plan is drawn up.
8. Keep the health and safety file – as stated above, the principal designer must maintain a health and safety file during the project. When the works have been completed, this should be passed to the client for future reference. If the principal designer leaves before the end of the project, this should be done by the principal contractor.
9. Protect members of the public and employees – the client as an employer must make sure that members of the public such as employees and visitors are protected from the risks of construction work; this is especially important in schools where ‘visitors’ are likely to include large numbers of pupils. This should be discussed with the designer and contractor to ensure appropriate measures are taken.
10. Ensure workplaces are designed correctly – any projects for a new workplace or which make changes to an existing workplace must meet the standards set out in the Workplace (Health, Safety and Welfare) Regulations 1992.
The principal designer’s main duties are:
The principal designer could be an individual or company, and they need to have sufficient knowledge, experience and ability to carry out the role. Their main duties are:
- To plan, manage, monitor and co-ordinate health and safety in the pre-construction phase, which will include identifying, eliminating or controlling foreseeable risks and ensuring designers carry out their duties.
- To prepare a health and safety file appropriate to the project. This must contain information about the current project, which could be needed to ensure the health and safety of future projects.
- To prepare and provide relevant information to other duty holders.
- To provide relevant information to the principal contractor to help them plan, manage, monitor and co-ordinate health and safety in the construction phase.
As detailed above, the principal designer is responsible for compiling a health and safety file for the project – when there is more than one contractor involved in the project. The type of information which should be contained in the file includes a brief description of the work carried out, key structural principles, any hazardous materials used, and the nature and location of significant services such as gas supply and cabling.
The full list can be accessed in the HSE guidance.
The principal contractor’s main duties are:
- To plan, manage, monitor and coordinate health and safety in the construction phase, which will include liaising with the client and principal designer; preparing the construction phase plan; and organising co-operation between contractors and co-ordinating their work.
- To ensure that suitable site inductions are provided; reasonable steps are taken to prevent unauthorised access; workers are consulted and engaged in securing their health and safety; welfare facilities are provided.
- To be responsible for preparing and making available a ‘construction phase plan’, which must be done during the pre-construction phase and prior to the construction site being set up. See next paragraph for more information.
The construction phase plan, drawn up by the principal contractor, should include information on the health and safety arrangements for the construction phase, the site rules and, where relevant, the specific measures to be taken if the work falls into the category of work involving particular risks (the list of such work is included in the HSE guidance). Although the principal contractor has responsibility for this plan, the client’s duty is to ensure the plan is indeed drawn up, and the principal designer must provide the contractor with any relevant information they require.
During the planning stage, the client has a duty to ensure that the construction phase does not start unless the construction phase plan conforms to the CDM regulations and that welfare arrangements for the construction workers are both in place and in compliance with Schedule 2 to the regulations. This specifies the requirements for welfare facilities for construction sites, in relation to regulations 4(2)b, 13(4)c and 15(11).
Once the construction phase has begun, the principal contractor has a duty to ensure that those carrying out the work are capable of doing so, effective measures are put in place to control risks, and the correct equipment and tools are used to carry out the work.
Under the 2015 CDM regulations, everyone involved in the project is a duty holder. This includes workers, who are those employed by contractors and who work on the construction site. Alongside all others, they have a duty to report anything they see which could be a health and safety risk.
The regulations also lay down detailed provisions for the health, safety and welfare of construction workers and anyone who may be affected by the work. Accordingly, they cover teachers, support staff and pupils during construction work in schools as well as contractors’ employees.
There should always be effective communication between the school and the contractor to establish how the contractor intends to meet the requirements of the regulations. Work should not begin until the head teacher is satisfied about the safety arrangements for staff and pupils. The regulations state that special consideration must be given for sites such as schools where children are nearby, to ensure that the site is not accessible to anyone other than those working on it.
Part 4 of the CDM regulations sets out a wide range of provisions relating specifically to work carried out on the construction site, including duties to:
- ensure a safe place of work and safe means of access and egress
- prevent danger to any person, to ensure that any new or existing structure, or any part of such structure which may become weak or unstable, does not collapse
- ensure safe movement of pedestrians and vehicles, and give warnings of dangerous vehicle movements such as reversing
- prevent risk from fire, explosion, flooding and asphyxiation, and to make arrangements for emergencies, including evacuation procedures and firefighting equipment
- prevent danger to any person from excavations
- provide a sufficient number of suitable emergency routes and exits to enable any person to reach a place of safety quickly in the event of danger
- provide every place of work, approach and every traffic route with suitable and sufficient lighting.
For detailed guidance about responsibilities under the CDM Regulations 2015 go to the HSE website.
Stages of the construction contract: recommended procedures and involvement of the NEU safety representative
The following guidance is drawn largely from the-then Health and Safety Commission’s 1988 guidance pack Building Contracts Undertaken on Education Premises. The guidance pack is no longer in circulation as it pre-dates the introduction of the 2015 CDM Regulations. It remains, however, an authoritative guide to good practice and the standards likely to be sought by HSE inspectors, in the absence of any more up-to-date guidance from the HSE.
The CDM regulations will apply to much, but not all, building work in schools. Even where they do not apply, their provisions should be regarded as good practice to be followed. References below to the principal contractor should be taken to apply equally to the head teacher or other member of school staff overseeing smaller works on school premises.
The safety representatives’ right to involvement
The Safety Representatives and Safety Committees Regulations 1977 require employers to consult “in good time” with safety representatives on the introduction of any measure related to health and safety. This means that safety representatives have a right to consultation during both the planning and execution of construction contracts. They also have a general legal right under the 1977 regulations to receive from their employers all available information which is necessary for them to fulfil their functions. They also, of course, have the right to carry out inspections where there have been substantial changes in working conditions such as the commencement of building work in the school.
Safety representatives should expect to be included in meetings before, during and after construction work to discuss issues arising out of the construction activities. By maintaining effective links in this way with their employer, school management and contractors, NEU safety representatives can help ensure that precautions are in place to minimise or eliminate any risks to staff and students resulting from the construction work.
In its 1988 guidance, the HSE emphasised the importance of involving all interested parties, including union representatives, in the maintenance of safe working and learning conditions. In Contractors in Schools, the HSE specifically recommends to head teachers and governors that they should “consult and seek the involvement of safety representatives wherever possible”.
Preparing the contract documents
At this point, the employer/governing body/head teacher (as applicable) should reach agreement on a number of matters in order to provide details to contractors prior to tender. The HSE guidance advises that it may be appropriate, depending on the nature and scale of the work, for safety representatives to be consulted at this stage. The NEU believes that it is sensible for safety representatives to be involved from the beginning of the process.
Matters to be agreed at this stage include the following:
- the nature and parameters of the work, the areas within which the work can be contained and the period within which the work will be undertaken
- information relevant to the safety and welfare of the contractor’s employees while undertaking the work, for example the presence of overhead power lines, underground cables, asbestos on site etc
- information on compliance with the Workplace (Health, Safety and Welfare) Regulations 1992 for the contractor’s employees
- information relating to the expected safety standards and procedures which the contractor will be expected to observe to ensure the health and safety of pupils and school staff.
Selecting the contractor
The HSE guidance document Contractors in Schools, which provides information to governors and head teachers on the selection of contractors, suggests the following helpful indicators for assessing the competence of a contractor:
- inclusion in local authority ‘approved lists’
- past performance
- work undertaken elsewhere, such as in other schools
- membership of trade bodies
- accreditation by trade bodies
- general health and safety awareness
- organisation and arrangements for health and safety
- commitment to recognised codes of practice.
The CDM regulations will, if applicable, impose specific duties relating to the selection of competent persons and organisations. Where the work to be carried out requires a ‘competent person’, as with electrical contractors, then a statement of the appropriate qualification and level of competency should be sought and kept on file.
Contractors could be asked to provide a method statement as part of their tender including details of risk assessment and measures for control, arrangements for supervision and responsibility for enforcing safety standards.
Contractors could also be asked to supply a list of sub-contractors to be used, and the right to exclude any individual company may be reserved.
Site meetings - general
As noted above, safety representatives should expect to be included in meetings held before, during and after building work takes place to discuss health and safety issues arising out of the construction work.
Regular involvement in such meetings will ensure that safety representatives are informed about planned construction activities and associated risks and can express any concerns about the safety of staff and pupils. While there is no obligation on the employer to accept the safety representative’s views, such involvement is a key element in maintaining good links between the employer, school management and the principal contractor.
In addition to the information which safety representatives will obtain by attending site meetings, they have a general legal right under the 1977 regulations to seek from their employers all available information which is necessary for them to fulfil their functions.
Employers must disclose information about changes in the workplace which will affect health and safety; information of a technical nature about hazards in the workplace and the precautions deemed necessary to eliminate or minimise them; details of accidents and dangerous occurrences in the workplace; and the results of tests or measurements taken on health and safety matters.
Where building work is being carried out on the premises, there is a broad range of information which the NEU believes would be relevant to the safety representative’s health and safety functions. This would include, for instance, the health and safety plan for the work in progress and its health and safety file; the health and safety file in relation to any building project previously carried out in the school; the results of any asbestos survey carried out in the school; information about the timing of particular works; and details of emergency evacuation procedures.
The ‘pre-site’ meeting
Before work commences, a meeting should be held between the client, principal designer and the principal contractor. This might include the agreement of the construction phase plan where required by the CDM regulations. The safety representative should be involved in this meeting.
The client may wish to supply the principal contractor with the following details:
- the employer and school health and safety policy statement(s)
- fire and evacuation procedures
- access needs
- any specific hazards
- the layout of the establishment and particulars of areas in which work is to be undertaken
- normal establishment hours and access arrangements, as well as any special arrangements for outside normal hours
- hygiene rules (particularly around kitchen/school meal areas)
- smoking policy
- responsibilities for health and safety at the establishment and monitoring procedures
- any permit to work procedures
- environmental noise restrictions
- accident reporting procedures
- any considerations specific to the premises (eg presence of special needs pupils, playtimes).
In turn, the principal contractor should provide the following details:
- access/exit requirements from the street
- access/exit requirements to and within buildings
- proposals for the use of scaffolding, ladders and other access equipment, and the envisaged protection to be used
- proposals for separating the work areas from open access areas
- proposals for positioning and fencing of skips and storage areas if separate from working areas
- any dangerous, noxious or offensive substance or process to be used which might present a health and safety risk, and proposed measures for protecting staff and pupils
- proposals for the storage of equipment eg scaffolds, ladders, liquid petroleum gas (LPG) cylinders and tools
- proposals for sanitary conveniences, first aid, services and parking
- cleaning routines, eg for the suppression of dust inside buildings
- waste disposal arrangements
- proposed equipment to be used and test documentation where required.
Where the contractor has identified specific risks, the school should also consider whether it needs to take complementary precautions within its own control to prevent danger to staff and pupils. There may, for instance, be a need to make announcements at assembly or increase lunch time supervision.
Agreement should be reached on matters such as:
- identification badges, if needed, for the contractor’s staff
- requirements for visitors to the contractor to report to the school office first
- the times when perimeter fencing and scaffolding will be erected and dismantled
- the times and locations when mobile scaffolds and ladders will be used and the protection that will be afforded
- the times when hazardous works (eg use of chemicals) may or may not be undertaken, and detailed procedures for undertaking these activities
- procedures to be followed when the contractor’s vehicles pass through open access areas
- procedures for the principal contractor to notify the head of specific work activities
- the provision of warning signs by the contractor in accordance with the HSE’s Safety Signs regulations.
It is also sensible for a meeting to be held with school staff before work starts so that they are aware of the proposals and the precautions which will be in place.
Site meeting on commencing work and during work
At the start of the work, the principal contractor and planning supervisor should meet on site to consider the planned work and any obvious hazards on site. The safety representative should be present at this meeting.
Regular site meetings while the construction work is being carried out should include consideration of the health and safety situation. Again, the safety representative should be present at these meetings.
Dealing with problems during the construction work
The safety representative has a general right to carry out inspections where there has been a substantial change in working conditions on the premises. This right clearly applies where building activities are being carried out in the school. The safety representative is entitled to inspect the workplace when work commences or during work in order to ensure, for instance,
that there is adequate protection against falling objects or that appropriate safety procedures are being observed in relation to specific processes (eg paint stripping, excavation, vehicle movements, etc).
The principal contractor should ensure that the construction phase plan is reviewed, updated and revised as necessary. This should examine if the controls put in place are working as they should and how effective the plan is. This will involve co-operation with other contractors, the principal designer and any other designers.
Safety representatives do not, at present, have the legal right to ‘stop the job’ when safety issues and risks to health and safety arise. However, the client or head teacher (if they are not the client commissioning the works) will have the authority to stop works when there is imminent danger to staff, pupils or visitors. The principal contractor must be made aware that any breach of work procedure may result in work being stopped immediately and, potentially, in cancellation of the contract without compensation.
Finally, the law does give employees themselves the right to stop work and leave their place of employment in case of imminent danger to their health and safety, under section 28 of the 1993 Trade Union and Employment Rights Act. Except in the most exceptional circumstances, such action should not be taken without consulting full-time union officials first.
A ‘post-site’ meeting should be held on completion of the project by the client and principal contractor. This should incorporate a joint inspection to ensure that the job has been properly completed, all equipment and chemicals removed, all rubbish cleared and all permits to work signed and terminated. Again, the safety representative should be involved.
The employer should be informed about satisfactory performance, or otherwise, in order to ensure that its list of approved contractors is kept up-to-date for use when placing further work. Where a health and safety file was required, all documents relating to the work must be kept in the file which should be retained by the establishment.