Injured contractors and the risks to health and safety that they face are an issue for the business engaging the contractor, as well as for their immediate employers. In this short vodcast health and safety solicitor Sue Dearden, and former HSE Principal Inspector Melvin Sandell consider the extent of the duty to employees of subcontractors, what H&S documentation to ask for (and not to ask for) when engaging contractors, and the extent and limits to which you should and shouldn’t go, in controlling and managing their work.
Managing Contractors – Transcript
Speakers are Sue Dearden, a solicitor in the legal team specialising in health and safety, with Melvin (Flip) Sandell who is a former HSE inspector, very experienced in picking up and enforcing on contractor issues.
Sue: I think it is right to say that the common assumption often made by employers is that they have got obligations to their employees, but not necessarily to the employees of sub-contractors. That causes problems because in fact under the Health and Safety at Work etc Act 1974 we’ve got obligations to take reasonably practicable steps for the safety of our own staff but also under section 3 of the Act an obligation to take reasonably practicable steps for the safety of contractors and their staff. In practical terms Flip, how is that achieved?
Flip: Contractor control is one of the most significant issues faced by employers. It depends whose stats you look at, but it is reckoned that over 40% of all prosecutions and enforcement are somehow related to what goes on within the supply chain. Keeping an eye on contractors and what they do is absolutely critical for a business. Long term contractors effectively become invisible to you – think of the window cleaner or the guy that comes in to empty the skips. They just become part of the scenery. They are actually carrying out some of the most hazardous things that go on within your business. Scoping out what they are going to do and how they are going to do it and where the responsibilities lie for what and who does what, how and where and when, are critical if you are going to be able to manage the contractors properly and comply with your duties.
Sue: From a legal point of view, documenting is often key to being able to defend a prosecution under section 3, and it is also key to mitigation. Determining competence of a contractor who you appoint is a topic in its own right but assuming that you do identify a contractor who is competent to do the work that you want to be done on your site, would you recommend asking for things like the Method Statement and Risk Assessment for the job and H&S policy and so on?
Flip: You know that risk assessments are one of the things required by law and you have to have them. But they can be a real double-edged sword in this circumstance. If you ask the contractor for the risk assessment for the work they are going to do, then it is going to be assumed that you are going to read that risk assessment – otherwise, why would you have asked for it. And if you are going to read the risk assessment it is going to be accepted that you know what is in it, and what should be there, otherwise, why read it? And if you read it, it is going to be assumed that you know what is right and wrong, otherwise, why would you have read it. So, there is a danger in asking for it, that you then have to make decisions about suitability and sufficiency of the risk assessment and take control of the work activities as a result of that if you are not happy with what’s in it.
Sue: But wouldn’t you expect somebody who is appointed a contractor because you don’t have the capacity to do the job yourself, to be able to look at that risk assessment and make sensible comments on it? I think there is probably a distinction to be drawn between contractors who are selected because you don’t have the capacity to do something yourself but would normally do it, so you have the expertise in whatever they are being asked to do, and contractors on the other hand who are brought in because you don’t have the skills or expertise to do that work. I think there is a difference there in terms of being able to assess or manage or support the contractors – you obviously know more about jobs that you could do yourselves.
Flip: I agree absolutely that it is very difficult, especially when you are in a situation where you don’t know the down and dirty details of what it is they are going to do. So, my recommendation is, ask if they have an H&S policy statement, ask if you can see examples of risk assessments that have been done in previous similar work, and that will give you a good idea of whether a contractor is competent and knows what they are doing.
Sue: And ask about their record as well?
Flip: Absolutely. Ask about their previous H&S record. If they are the kind of person that’s had numerous enforcement notices or been prosecuted 2 or 3 times, then perhaps they are not the right person for you.
Sue: During the job, Flip, what are your feelings about the supervision of contractors? When they are on-site and doing their job are you entitled to trust that they will do things in accordance with their own RAMS? Or should you be checking up on them?
Flip: You always need to be careful Sue, to make sure that when you intervene to stop things going on, that you aren’t actually taking control. You aren’t telling them how to manage their risk, and what they have to do to do it.
Sue: Unless it’s an obvious risk as you’ve just said.
Flip: If a contractor has an accident because they’ve done something silly and you can evidence that you have previously corrected them for this and told them to change that pursuit, nobody expects you stand over a contractor day after day, hour after hour monitoring them, but if you can demonstrate that you have told them not to do it in that way, and they continue to do that thing in that way, it is clearly a very strong defence for you because you have tried to manage it, have tried to control, but they chose to ignore you. And one other point about the people on-site, it is very important to have clear rules of engagement for your staff as well. Your staff will want to be helpful, will want to aid, they will want to assist, will want to provide all the help they can to the contractor, but again that drags your company into liability if they do something that helps the contactor to get hurt or vice versa. So, the rules of engagement must be very clear for your employees as well as the contractors.
Sue: I think that the key message here is don’t just assume that it is your contractor who has responsibility for its staff. You do too. So, you’ve got a responsibility to take reasonably practicable steps to ensure that their staff are as safe as they can be. I should also mention that the HSE has got some guidance on Managing Contractors Safely, and if prosecuted, or if mitigating, that will be where the Court will look in terms of setting the benchmark of expectation. So that’s a good place to start if you are looking at this issue.
Flip: It is. I agree. Another key point perhaps to take away is that sections 2 and 3 of the HSWA – the one that requires you to look after your employees and the one that requires you to look after nonemployees have the same level of duty, and you mustn’t think that your level of duty to look after people not in your employ is different or a lesser duty than the duty to look after your employees. Remember that you have the same duties, and the same expectations are placed upon you in law.
Sue: Thanks, Flip. I think that’s an excellent point on which to end. Thank you very much.
Flip: My pleasure.
For more information on managing contractors please contact Sue and Flip.
07909 682 688
Melvin (Flip) Sandell
07527 002 689