Contractors - who is in control?
Most businesses use contractors to cover their operational needs and keep head count and costs down. However some employers fall
into the trap of believing health & safety can be “contracted out” like everything else. That is a recipe for disaster. This article looks at how a businesses can end up liable for any accidents involving contractors, even where the contractors have disobeyed their customer’s clear instructions. For example, what if you ordered your contractors not to go on the roof, but they ignored your clear instructions and one of their employees fell and was seriously injured?
This happened in a case, when historic pottery firm Josiah Wedgwood & Sons Ltd employed contractors to work on their warehouses. The contractors went onto the roof to install barbed wire and replace skylights. Josiah Wedgwood & Sons Ltd decided not to allow them to go up again, but the contractors ignored this and went up onto the roof again the next day.
The company must have asked themselves why they were to blame, having prohibited the contractors from going on to the roof. The answer lay in not ensuring the contractors were fully integrated into their permit to work system. This is all the more important with contractors who will normally be unfamiliar with the client’s premises, safety rules and processes and therefore at a greater risk to themselves and others.
For this Josiah Wedgwood & Sons Ltd picked up the greater fine, £60,000 compared with £20,000 for the contractor. The Health & Safety Executive, (HSE) expected to see a higher degree of “policing” of the contractor’s activities, given the high level of risk.
The result accords with the HSE’s guidance Use of Contractors – a Brief Guide (INDG368) and Managing Contractors, a guide for employers (HSG159 2nd edition 2011). Each says the appropriate level of checking by a client will depend on the level of risk. In some cases, the client does not need to involve himself at all, for example if the job is a new build office. In other situations, the contractors may be working alongside the client’s own employees and others, for example refurbishing an existing workplace. In such cases, clients (and main contractors) must remember their statutory duties towards contractors and their employees namely:
- Section 3 HSWA 1974
- Paragraph 11 MHSWR 1999
- Part 4 CDM Regulations 2015
- Paragraph 3 COSHH 2002
- Paragraph 3(3) Control of Asbestos Regulations 2012
- Occupiers’ Liability Act 1957
They should also follow the six steps
in INDG368 namely:
- Identify the job
- Select a suitable contractor- consider experience, qualifications, memberships, arrangements for using sub contractors, previous accident/safety records. Inspect insurances, H&S policies, RAMS and training records. Give contractual force to this kind of “due diligence” exercise.
- Assess the risks - including assessing the risks jointly
- Provide information instruction and training. contractor staff must be integrated into policies and procedures to the same level as the client’s own employees.
- Cooperate and coordinate.
- Consult – ie ask your staff how the contractors’ work might affect their health and safety.
- Manage and supervise, this includes monitoring and checking the level …. depends on the risks.
HSG159 lists five steps namely:
- Choosing a contractor, the guidance contains a useful toolkit for assessing competence
- Contractors working on site, arrangements like signing in and having a site contact
- Keeping a check
- Reviewing the work
The steps in INDG368 and HSG159 (originally written for the chemical industry) unfortunately do not match exactly! However, it would be as well to follow both.
Clients should also “build in” health and safety requirements into their procurement procedures. For example, contractors should explicitly acknowledge applicable rules such as permit to work procedures. This will heighten health and safety awareness on the part of the contractor, lead to the job being done better and faster and with luck contain the client’s own exposure in the event of a claim or HSE investigation.