Andrew Clarke is a solicitor specialising in defending regulatory prosecutions and enforcement at Gullands.
s a client or a main contractor, would you expect to be liable for an accident to one of your contractor’s employees when they have disobeyed a clear instruction? That is what happened when historic firm Josiah Wedgwood employed contractors at their warehouse in Stoke. They worked on the roof installing barbed wire and replacing skylights. Wedgwoods then instructed them not to go on the roof again. However the contractors ignored this – a worker fell and was seriously injured.
Wedgwoods must have wondered why they were to blame, having issued a clear instruction. However they had not truly integrated the contractors into their permit to work system. There should have been more supervision of the contractor’s activities given the high level of risk (contractors are normally unfamiliar with the client’s premises, safety rules and processes and therefore a greater risk to themselves and others). For this Wedgwoods were fined £60,000 and the contractor £20,000.
The HSE guidance Use of Contractors – a Brief Guide (INDG368) and Managing Contractors, a guide for employers (HSG159 2nd edition 2011) discuss the appropriate level of checking by a client. In some cases the client should not need to involve himself at all, for example if the job was a new build office. In others the contractors may be working alongside the client’s employees and others, for example refurbishing an existing workplace.
In such cases a number of statutory duties towards contractors could apply such as:
- Section 3 HSWA 1974
- Paragraph 11 Management H&SW Regulations 1999
- Part 4 CDM Regulations 2015
- Paragraph 3 COSHH 2002
- Paragraph 3(3) Control of Asbestos Regulations 2012
- Occupiers’ Liability Act 1957
Clients (and main contractors) should consider the six steps in INDG368 namely:
- Identify the job
- Select a suitable contractor – investigate experience, qualifications, memberships, arrangements for using sub contractors, previous accident/safety records. Inspect insurances, H&S policies, RAMS and training records
- Assess the risks – sometimes this should be a joint exercise
- Provide information instruction and training – contractors should be integrated into policies and procedures to the same level as the client’s employees
- Cooperate and coordinate
- Consult – ie ask your staff how the contractors work might affect their health & safety
- Manage and supervise – a level of monitoring appropriate to the level of risk
HSG159 lists five slightly different steps Planning, Choosing a contractor, Contractors working on site, Keeping a check and Reviewing the work.
Although originally designed for the chemical industry, HSG159 is the more detailed and interactive publication – containing a useful toolkit for assessing competence. Procedures for using contractors should be built round both sets of guidance.
Clients should also build health and safety requirements into their procurement procedures. Contractors should expressly acknowledge rules such as permit to work procedures and all this (including the contractor’s responses to selection criteria) should be given contractual force. The right paperwork may help defend a claim or HSE investigation. Good selection and management of contractors may ultimately bring savings through greater efficiency. However most important of all is to avoid the nightmare scenario of a Wedgwood type accident. The answer to that is genuine engagement with contractors on health & safety. HSE guidance INDG368 and HSG159 provide a framework for achieving this. Anyone employing contractors in a risky setting should check their procedures measure up to the same standard.
