Your health & safety liability for contractors
Posted by Andrew Clarke on 16th December 2009
These days businesses typically use contractors more than ever before. As well as using specialist contractors such as electricians, builders, cleaners, maintenance, security or catering, sometimes “contractors” work in core areas of the business, shoulder to shoulder with regular staff.
Contracting out reduces the managerial and administrative burden on businesses, enabling them to focus on their core activities. Contractors and the work they are doing are one less thing for management to worry about. However, it is not as simple as that from a health and safety point of view. People make the dangerous assumption that health and safety can be “contracted out” like everything else – and that contractors can be left to look after themselves. That is a recipe for disaster. The reality is that a business which employs a contractor assumes a network of liabilities for the safety of that contractor, his personnel and anyone else who might be affected by his activities. The risk of something going wrong is heightened, because contractors typically carry out work which is more hazardous than the employing organisation’s day to day activities – and are typically working in an unfamiliar environment.
The Health & Safety at Work Act 1974 applies not just as between employers and employees, but to work activities which might affect the health and safety of others (ie visitors, members of the public and of course contractors). A series of specific regulations made under the HSWA impose duties on businesses employing contractors, most importantly carrying out a suitable and sufficient risk assessment of how the health and safety of non-employees might be affected by work activities. Regulations covering work at height, construction sites, display screens, CoSHH, asbestos and work equipment including duties to non-employees. In addition businesses have the duty of an occupier (under the Occupiers’ Liability Act 1957) to exercise reasonable care for the safety of visitors to their premises. In the construction context, Part 4 Construction (Design and Management) Regulations 2007 (CDM) imposes numerous obligations towards non-employees, for example as to safe access/egress. It would therefore be a serious mistake to assume that contractors do not count as part of the workforce from a health and safety point of view.
These duties can be strictly enforced by the HSE when something goes wrong. To illustrate historic ceramics firm Josiah Wedgwood employed contractors (Hough Engineering) to install anti-theft measures, following a series of break-ins at their warehouse in Stoke. On day 1, Hough’s employees went on the roof to install barbed wire and replace skylights. Wedgwoods ordered the Hough’s man not to go on the roof again. Nevertheless on day 2, the Hough’s men were on the roof again contrary to Wedgwood’s instruction and permit to work system. Strikingly, it was Wedgwoods who picked up the greater fine (£60,000 plus HSE costs of £17,837) with Houghs fined only £20,000 plus costs. The problem for Wedgwoods was failing to ensure its permit to work systems were being followed properly. The HSE expected to see a high degree of “policing” of the contractor’s activities, taking into account the high level of risk.
It might be easy to throw up your hands in horror and say “if I tell my contractor not to go up on the roof – and he still does it – why should I get prosecuted?” Reading between the lines in the Wedgwood case, there was probably an excellent permit to work system operated for employees, but it got diluted or ignored because contractors were involved. Logically, there is really no excuse for that and it would not have cost Wedgwoods much if anything to ensure Houghs were familiar with and fully integrated in their permit to work system. The HSE guidance on using contractors (INDG368 see www.hse.gov.uk) is entitled a joint responsibility - stating emphatically how both parties have duties under health and safety law. The starting point for a safe and legal project will be both parties collaborating on a site and task specific risk assessment, looking in detail at the likely demands of the job. That will get the job off on the right footing, but the employing undertaking needs to ensure standards are kept, by thorough monitoring and supervision. You cannot predict everything in a risk assessment, so there needs to be dialogue and the means of assessing new and unexpected risks as they are encountered. Put briefly, contractors need to be fully integrated in your business’ health and safety management system and culture.
While we have focussed on health and safety management of contractors, their selection and vetting is at least as important in practice. Factors to consider include experience, qualifications, memberships, their arrangements for using sub-contractors, previous accidents/safety record. You should demand to see their insurances, H&S policy, risk assessments, method statements and written evidence of the training/competence of their personnel. Businesses would be wise to give contractual force to this kind of “due diligence” exercise. If the contractor’s answers are suitably incorporated into the contract, the client business will have a better contractual basis for dismissing a contractor or suing for consequential losses. Also by dealing with health and safety management issues in the contract, the client business will be in a better position to demonstrate compliance with the HSWA and Regulations, which might be enough to dissuade the HSE from launching a prosecution. A contract framework which deals properly with health and safety gives the client business the opportunity to heighten health and safety awareness on the part of the contractor and ensure the contractor has explicitly acknowledged applicable rules, such as the client business’ permit to work system. Businesses should look at “building in” health and safety requirements into the tendering/procurement procedures. Logically, good risk management makes economic sense in terms of avoiding accidents, reputational risk and increased insurance premiums. Selecting the right contractors and using them well should reap similar rewards.
