Liabilities associated with managing contractors, and the duty of care owed to them, is often misunderstood or even ignored, despite increasing evidence of the liabilities for failing to appoint and manage such contractors.
The term contractor applies to anyone you get in to work for you who is not an employee and will include individuals as well as organisations. The basic test of whether a person is an independent contractor is one of control over the undertaking of the work specified. For clarity, contractor personnel who are merely visiting your premises for meetings are deemed to be visitors, not contractors. Organisations also need to be aware of and understand the differences between ‘labour only’ and ‘bona fide’ sub-contractors.
Labour only sub-contractors work under the employer’s direction and control, so for insurance purposes are deemed to be ‘employees’. These will include temporary workers, agency workers and hired-in labour. Bona fide sub-contractors work under their own company’s direction and supervision or in association with a principal contractor, and must have their own Employers and Public Liability insurance arrangements. The term ‘contractor’ is not restricted to building contractors. In its wider sense it includes any individual or company who enters premises to fulfil a contractual obligation agreed with the business occupying the premises, the property owner, their managing agent or a main or specialist contractor.
A lack of suitable control of contractors can and does lead to accidents not only to contractor’s employees, but also to one’s own employees, tenants, residents and visitors. There are numerous examples where accidents have resulted in both prosecutions and civil claims against the employing client business in addition to the contractor.
The principle that organisations (employers) retain responsibility for the safety of contractors working on their premises was established in the case of R v Associated Octel Co Ltd (1996), heard in the House of Lords. Associated Octel was prosecuted under section 3 of the Health and Safety at Work etc Act 1974 (HSWA) for failing to ensure the safety of persons not in their employ. Their defence was that the bona fide sub-contractor dictated how the task was undertaken and that Associated Octel had no duty under section 3 of the HSWA and accordingly had no right to control or stipulate how the work was done.
Associated Octel appealed earlier judgments to the House of Lords who upheld the lower court’s decisions. Whether a work activity is part of the conduct of an employer’s undertaking is a question of fact. It does not depend on whether the employer engages employees or independent contractors to carry out that work or whether control is exercised over the activity. If the work itself is part of the undertaking, meaning ‘enterprise’ or ‘business’ in this case, a duty is owed under HSWA s.3(1) to ensure that it is done without risk, subject to reasonable practicability.
Employers cannot defend themselves by relying on contractors to manage their operations in isolation. The Court of Appeal reaffirmed in Lynch v CEVA Logistics and Lynch Electrical Contractors (Court of Appeal 2011), that a workplace owner or occupier owes visiting Contractors and their employees a duty of care where it is able and competent to give them instructions, and must be alert to any unsafe practices of sub-contractors.
A number of pieces of legislation require employers to have duties when employing contractors including the Health and Safety at Work etc Act 1974, the Occupiers’ Liability Acts 1957 (common law duties to visitors) and 1984 (duties to trespassers), The Management of Health and Safety at Work Regulations and the updated Construction (Design and Management) Regulations 2015 (CDM). The CDM Regulations place specific duties on clients who appoint anyone to undertake a construction project. It should be remembered that ‘construction’ under the regulations has a very wide meaning and includes, among other things, construction, alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, redecoration or other maintenance, de-commissioning, demolition or dismantling of a structure. Under the regulations a client must make suitable arrangements for managing a project and ensuring that the work can be carried out, so far as is reasonably practicable, without risks to health and safety of anyone.
It is essential that every organisation that appoints contractors have a robust procedure in place for appointing and managing ‘competent’ contractors. Following any incident it may be necessary for the client to evidence the steps they took to identify and appoint ‘competent’ contractors and the processes they had in place to continue to manage those contractors effectively. Sometimes you may have more than one contractor on site. You need to think about how their work may affect each other and how they interact with your activities. Clearly, in these circumstances there is more chance of something being overlooked.
Some of the key elements of contractor management will include the following:
Assess the experience and competence before appointment
It is wise to have a process in place whereby before appointing any contractor you assess the evidence of their competency. This can be done through establishing their experience, the training of their staff and whether they have a safety management system, including relevant risk assessment processes in place.
Also, ensure you evidence their insurance cover and check they are insured for the work they are undertaking – does it include Employers Liability?
Communicate with contractors
Accidents happen more easily when the contractor’s job is outside of your usual methods of safe working if: * The hazards of their job haven’t been identified and steps have not been taken to minimise risks * No-one is around to make sure the contractor follows health and safety rules on site * Accidents with contractors can be caused by poor communication – when staff don’t know there is a contractor working nearby and when contractors don’t know the dangers on site.
Bring contractors into your health and safety procedures. They may be strangers to your site and won’t know:
- About the hazards on your site
- Your site rules and safety procedures
- What to wear
- About special equipment they need to use
- What to do in an emergency
- The sound of the alarm, and how and when to raise it
You may take good practice for granted in-house, but don’t assume the same applies to contractors. Even regular contractors may need reminding. Now is the time to ask yourself, do you need to improve your procedures for work with contractors? Are you sure they cover all contractors, every time? Maybe you’ve never had an accident involving a contractor, despite this, it is not necessarily a good reason to think that your procedures are adequate. In our experience employing contractors can be one of the biggest health and safety risks for any organisation so make sure you have a robust contractor appointment and management system in place with plenty of evidence to protect yourself.
If you would like help in reviewing insurance cover for any contractors working at your premises or sub-contractors you are utilising, please contact your Darwin Clayton representative.
Article provided with the support of Mark Preston of Cardinus Risk Management.