CSCS cards and their legal status

I believe CSCS  ( worker certification cards) are a legal requirement. CSCS advertise on their web site that their cards are voluntary for employers. By being voluntary they can put any requirement they want on their cards without infringing on employment law.
See here: https://www.cscs.uk.com/about/

CSCS are now going to effectively ban 230,000 UK construction workers from their place of work unless they get NVQ 2 in their trade!
See here: https://www.cscs.uk.com/applying-for-cards/cro-card-changes/

Here I explain why I believe CSCS cards are a legal requirement for employers.

Since the ” corporate manslaughter and homicide act” was brought into law in 2007, employers now have to prove that they have shown a minimum duty of care to their employees as defined by HSE regulations.

The Health & Safety executive, when prosecuting employers in the construction industry look to see if employers have followed the Construction (Design and Management) Regulations 2015 (CDM 2015).

Regulation 162 of (CDM 2015) states:
162: When a contractor employs or appoints an individual to work on a
construction site, they should make enquiries to make sure the individual:
(a) has the skills, knowledge, training and experience to carry out the work they
will be employed to do in a way that secures health and safety for anyone
working on the site.

CSCS cards are now a construction industry standard used for verifying that workers have the requirements to satisfy (CDM 2015) regulation 162 paragraph ( a).

Although on their own, cscs cards should not be relied on as the sole way of satisfying (CDM 2015) regulation 162 paragraph ( a),  they are an industry standard and have been promoted by industry bodies therefore considered to be ” good practice”.

This HSE web page discusses industry ” good practice” and it’s role in proving that employers have shown the ” minimum duty of care” to their employees.

http://www.hse.gov.uk/risk/theory/alarp2.htm

I draw your attention to these paragraphs under the HSE ” Definitions of good practice”.

Other written sources which may be recognised include:

guidance produced by other government departments;Standards produced by Standards-making organisations (e.g. BS, CEN, CENELEC, ISO, IEC);guidance agreed by a body (e.g. trade federation, professional institution, sports governing body) representing an industrial/occupational sector.Other, unwritten, sources of good practice may be recognised if they satisfy the necessary conditions (see ‘Policy – identifying good practice’ below), e.g. the well- defined and established standard practice adopted by an industrial/occupational sector.

Since CSCS cards have been promoted by ” many” construction industry bodies and are widely accepted as an established standard practice by the construction industry, their use shows that an employer has fulfilled a  minimum duty of care to his/her employees as required by HSE regulations.

HSE in their definitions of good practice in this article state that:

‘Good practice’, as understood and used by HSE, can be distinguished from the term ‘best practice’ which usually means a standard of risk control above the legal minimum.

So CSCS cards have now become a minimum “legal” requirement  for verifying that workers have the Skills, knowledge, training and experience to carry out their tasks safely as required by HSE regulations.

Therefore CSCS cards are now a minimum legal requirement for employers unless they want to risk prosecution by HSE.

I have asked HSE about this using their on line enquiry form. I asked them can an ” employer” be prosecuted for not using CSCS cards? They avoided the question and replied that “employees ” cannot be prosecuted for not having CSCS cards. I had to threaten HSE with a ” freedom of information request” just to get this small amount of information from them.

The reluctance of HSE to confirm if employers can or cannot be prosecuted for not using CSCS cards only served to increase my suspicions that CSCS cards are a legal requirement for employers!

I have since asked the same question many times, HSE have not replied!

I shall now file a freedom of information request to HSE, however it will take 30 days for a response from HSE.

If an employer can be prosecuted for ” Not Doing Something” then most reasonable people would agree that it is a ” legal requirement” to do it!

When a system like CSCS cards becomes an industry standard and good practice and it concerns the health and Safety of employees  its legal status changes.

Think about this example:

If you were hurt by another employee on a building site, and you found out that your employer had not verified that this employee had the correct training, knowledge or experience to be working with you. Would you consider suing your employer because he had not used an industry standard of good practice to verify that the employee had the training skills and knowledge to work with you safely?
Of course you would!

Below is the content of the email I received from HSE:
……………………………………………………………………….
Dear  ( name removed)
I am sorry if I did not clarify HSE position on the requirement for a CSCS card.

I have consulted with our construction inspectors and can confirm that Industry Standards are good practice for employers on the level of training someone has had, but HSE do not prosecute employees for not having a CSCS card and following industry standards.

Compliance with health and safety legislation would be the minimum standard which HSE would expect.

We do not use industry standards to prosecute employees.  We use compliance with legislation and would not enforce against industry qualifications.

HSE require employees to have the skills, knowledge, experience and training to complete their work activity.

 This is mentioned in the CDM regulations :

Organisations or individuals can carry out the role of more than one dutyholder, provided they have the skills, knowledge, experience and (if an organisation) the organisational capability to carry out those roles in a way that secures health and safety.

Sincerely

( Name removed)

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