Contractor Management is concerned with ensuring that when you hire a contractor to undertake work on your behalf, health and safety issues are properly managed in terms of how they affect the contractor’s employees as well as your own. Organizations have a responsibility for the welfare of all those people who do work for us but who are not on our payroll. Businesses need to operate according to clear procedure when hiring contractors.
Contractors have a legal responsibility to care for the health and safety of their own employees as well as others who are affected by their activities, which includes employees of the client who has hired them, but it is not true to say that the ‘entire’ responsibility rests with them. If you hire a contractor to work on your behalf then you also have a responsibility for the safety of everyone affected, including the employees of the contractor.
Responsibilities for health and safety are clearly defined in criminal law. When a client hires a contractor, there may be a written contract in place to define who is responsible for each aspect of the work. However, what such a contract cannot do is to pass the legal responsibilities for health and safety between the client and the contractor. They must both execute their own responsibilities under the law, including where they overlap.
This overlap of responsibility also applies between the contractor and any subcontractors that are employed. Exactly how far responsibility extends along this chain depends upon the circumstances and the prudent course of action is to always operate rigorous checking and monitoring procedures.
The hiring company is responsible for checking on the health and safety arrangements of all contractors, it follows that contractors who cannot demonstrate adequate health and safety provision are, in effect, disqualifying themselves from working for the most responsible and reputable clients, which usually means the most desirable contracts.
When you go about discharging your responsibilities, it is important that your procedures are rigorous and systematic. A good starting point is to establish a checklist of items that you need to address, which is tailored to your local circumstances.
The lack of control of contractors working on clients’ premises can and does lead to many accidents and injuries to both the contractors and the clients’ employees. This has resulted in civil claims for compensation and statutory proceedings against clients who did not fully appreciate the extent of the duty of the client to his contractor.
Section 3 of The Health and Safety at Work Act (HASAWA) 1974 duties to others states;-
s.3(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment are not exposed to risks to their health or safety.
s.3(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety.>
s.3(3) It shall be the duty of every employer and self-employed person, to give persons (not being his employees) information his work as might affect their health or safety.
Section 4 places duties on occupiers and/or owners of premises to ensure that:
The premises, plant and substances contained in them are safe and without risks to health, and Safety
Possible Civil outcomes of an accident due to poor Contractor Management?
Civil law allows for one person to take an action in law against another (individual vs individual), when a breach of the common law duty of care is alleged. The action can only be taken where loss has occurred and the remedy sought is compensation in the form of monetary damages. Where negligence is proven, then damages are awarded based on the level of financial loss sustained e.g. loss of earnings (Pecuniary damages) and for non-financial losses e.g. loss of leg, loss of faculty (Non-pecuniary damages). Financial liability for loss caused by negligence can be underwritten, and the defendant can hold insurance for this. In some cases such insurance is mandatory.
County Court –presided over by a judge who is empowered to hear cases for compensation up to £50’000.
High Court –The Queen’s Bench Division deals with cases where the claim is in excess of that of the County Courts power.
Possible Criminal outcomes of an accident due to poor Contractor Management?
Non-compliance with the standard as set out in a Statutory Law is a crime and if the wrongdoer is caught may well be answerable in court. Enforcement bodies are empowered with monitoring compliance with particular parts of the law and taking relevant action against these wrong doers, in the form of prosecution. Prosecution proceedings can be summarily in the Magistrate Court or Indictably in the Crown Court before Judge and Jury. On a guilty verdict, the magistrate or judge can punish the wrongdoer, financially in the form of a fine, or custodially in the form of a prison sentence. The maximum level of sentencing will normally be contained within the statute. Fines are personal penalties and cannot be insured against.
Magistrate Court –the lowest criminal court empowered to deal with summary offences using lay Justices of Peace. Generally, the maximum punishment that can be imposed for each offence is £5000 fine and or up to 6 months imprisonment. Under HASAWA 1974 employers can be fined up to £20’000 per offence.
Crown Court –indictable cases and those elected to be tried by jury from a magistrates court are heard by Judge and Jury. The court is empowered to impose unlimited fines and/or a maximum of 2 years imprisonment for cases related to health and safety
If you would like to learn more about how ISO 45001 can help to mitigate your health and safety risks you can click here.