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Construction & Engineering

Legal training for non-lawyers

As lawyers working in the construction industry, my colleagues and I often advise on situations where the parties have become embroiled in expensive and time-consuming disputes, and have to fight over positions weakened or sometimes caused by avoidable errors. These errors come in many forms including non-compliance with condition precedents, failure to serve notices on time (or even serve them at all), failure to provide contractually required information (in notices or otherwise), missing or incomplete records to evidence causes of delay, etc.

Not only can such errors result in direct financial losses to your business, they can also result in damage to reputation, extensive management time being diverted from running the business, loss of opportunities for new work and large legal bills.

Why are simple mistakes made?
All too frequently these costly errors are the result of a lack of understanding of the contracts the parties have entered into or erroneous assumptions that all contracts are more or less the same and can be operated in the same way.

Staff working on projects have often had little or no training in relation to the commercial and contractual implications of their actions (or omissions) on the job. There is also a misguided view held by some in the construction industry that some parties are “too contractual” and that this a ‘bad thing’. However, as well as providing protection for the parties, the contractual mechanisms, when operated properly, can serve as an early warning of problems and result in early correction of those problems. This can be of benefit to all of the parties on the project and being “contractual” need not be antagonistic or result in tensions between the various parties to a project.

The question is, how does your business avoid costly mistakes and place itself in the best position possible? The answer is simple: targeted training for your staff. Some organisations will have the capability to carry out such training in-house, for example those with an in-house legal team. However, for those that do not, there are numerous organisations offering training on specific matters affecting the construction industry, including contract-specific sessions*. These can often be tailored to suit your business’ needs and budget.

What benefits can training bring to your organisation?
Ensuring that your staff are trained to understand the contracts they are working under can bring a range of benefits:

  • Staff can avoid inadvertently leaving your business open to obvious claims, for example in relation to non-compliance with contractual notice provisions;
  • Increase productivity and reduce defects;
  • Ensure compliance with statutory regulations (such as the CDM Regulations) and avoid costly fines or investigations (not to mention accidents); 
  • Develop good habits in your staff which will become second nature to them, particularly in relation to good record-keeping;
  • Improve staff morale and motivation and reduce staff turnover;
  • Find ways to improve the day-to-day running and operation of your business’ contracts; 
  • Reduce management time spent supervising and dealing with problems and disputes;
  • Win new business.

Ultimately, effective training could save your business money, increase profitability on projects and avoid the disruption and associated damage to reputation caused by disputes.

For businesses where continuing professional development (CPD) is a requirement, training courses can also fulfil those CPD needs.

Demonstrating to your customers that you can effectively and efficiently operate your contracts and that your staff are well-trained is likely to result in your business winning more work. Some customers demand evidence of staff training and increasingly, this extends beyond the remit of health and safety training.

Which staff should be trained?
This is a difficult question to answer. There is no easy formula which you can apply across the board.

For example, you might consider training to be appropriate only for relatively new or junior members of staff. However, such staff may have recently undergone significant training in obtaining qualifications. They are more likely to be lacking in areas which tend to be developed through practical experience. That does not necessarily mean that training cannot help them; practical experience of problems which tend to be encountered in real life and training specific to the needs of your business can still be of great benefit.

Experience is sometimes valued above all else in the construction industry – however, even experienced members of staff may be rusty in some areas. They may have missed developments and changes in the industry’s contracts, mechanisms and relevant statutory regulations. More experienced staff also often have very ingrained habits – some of which will be bad ones. A training session could encourage such staff to “turn over a new leaf” and improve some of their day-to-day practices (particularly where record-keeping is concerned).

In light of the above, it is important to keep an open mind when considering which staff might benefit from some training and what form that training might take. A one-size-fits-all approach to all of your staff might be the most cost-effective solution in the short-term but may not be the most beneficial in the long-term.

What training would be beneficial to your staff and your organisation?
The key to implementing successful training is planning. Decisions on how to spend your training budget should not be treated like a “box-ticking” exercise. If your business is prepared to invest some time and money in training staff, it is important to ensure that that training is appropriate and likely to benefit the business. Some points to consider when creating a training programme (whether in-house or external) are:

  • Budgetary constraints:

- Length of training (as this will result in staff time spent away from carrying out their normal roles)
- Location of training – can it be carried out at your offices or at a venue nearby? 
- Cost of training, travel expenses, venue hire if necessary, etc.
- Which staff and how many staff need to be trained? Can they be trained together or would their needs differ and require separate sessions? 

  • Choosing appropriate topics:

- What types of contracts does your business tend to use? Are they bespoke or based upon a standard form?
- How large is your business and what is the typical value of your contracts?
- Does your business tend to work in specific sectors or is it involved in a wide variety of projects?
- What disputes has your business been involved in over the last three years?
- Have certain issues cropped up on multiple occasions?

  • Does the training provide any sort of certification, CPD points, etc.?
  • Flexibility:

- Could “off-the-peg” training cover your needs?
- Would it be beneficial to create a bespoke training programme?

  • Format:

- Would webinars be suitable or would your staff benefit from face-to-face sessions?
- Do you require your staff to be assessed at the end of the training?
- What materials would you like provided as part of the training (e.g. pre-reading, notes of the session, handouts, etc.)?

Taking into consideration the above points should help you to decide exactly what kind of training would be most suitable for your staff and plan how, when and where that training should take place. Developing and implementing training is not a quick process and may even take several months However, done properly, it should prove to be a worthwhile investment for your business.

Armed with a well-informed work force, you should see real and measureable improvements in the outcomes of your projects and ultimately in your profit margins.

*BPE offers a broad range of standard and bespoke training modules which are available to book as individual modules, half-day or full-day sessions or bespoke programmes to suit your business. For further details email:constructionseminars@bpe.co.uk.

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These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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