This article details how to manage contractors in the workplace. It covers the legal framework around ‘what is’ and ‘when does’ a ‘Duty of Care’ apply. It also outlines the Health & Safety Executive advice on how to manage contractors. The legal background will hopefully help you adopt the right approach for your business. Our Health and Safety for mangers course also covers this topics too if you need staff trained on this subject.
How to Manage Contractors at Work
From a health and safety perspective, the management of contractors can cause confusion. For example who is responsible for training and risk assessments? When does the duty of care to contractors begin? When does it end?
Answers to these questions vary depending on the workplace.
This article sets out the overarching legal ideas used in law to assign proportion blame. Then we share general advice from the Health and Safety Executive on the effective management of contractors to help ensure your business runs smoothly and does breach your duty of care to contractors.
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The courts have ruled that organisations retain some responsibility for health and safety during activities carried out by their contractors. So, you cannot delegate your legal responsibilities. You cannot just rely on standard clauses requiring contractors to comply with relevant health and safety legislation.
You must take all reasonably practicable steps to:
- check whether your existing and prospective contractors’ arrangements and organisation for health and safety are good enough to make sure that they can carry out their tasks safely;
- co-ordinate and control the work they carry out on your behalf; and
- monitor their performance.
Organisations have responsibilities for the actions of contractors when a duty of care exists.
What is meant by ‘Duty of Care’?
When does a duty of care exist?
The health and safety executive defined a duty of care to exist when “people might be affected by their business.” This means contractors are under an employers duty of care the whole time they are working for the employer.
When the duty of care exists employers must do whatever is ‘reasonably practicable’ to protect the health, safety and welfare of their contractors. Just as they would employees.
When does a breach of the Duty of Care occur?
The duty of care is breached if the defendant has failed to exercise the reasonable care expected of a reasonable man in the circumstances. For example not providing contractors with a basic site induction could be considered, failing to exercise reasonable care. Or either by not providing contractors with adequate P.P.E or if they are bring their own not having a process to ensure contractors only work when wearing adequate P.P.E.
Proving the case – If an accident occurs, to get compensation the contractor (civil case) must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm and that the harm would not have occurred “but for” the negligence of the employer.
Contributory Negligence – Contributory negligence arises when the contractors own carelessness, or disregard for personal safety, contributes to the injury or loss which arises partly because of the contractors own fault and partly because of the fault of another (the employer).
Damages recoverable in respect of the claim will be reduced to the extent the court thinks is fair having regard to the contractor’s share of responsibility for the damage.
Vicarious Liability – In general terms vicarious liability is a legal liability imposed on one person making them liable for negligence committed by another.
With regard to a personal injury claim for an accident in the workplace if an employee, acting in the course of normal employment injures a contractor the employer can be held vicariously liable for the losses incurred.
What does the HSE advise on how to manage contractors?
The HSE advocates a five step approach on how to manage contractors and ensure safe working:
- Choosing a contractor
- Contractors working on site
- Keeping a check
- Reviewing the work
Following reorganisation, the range of outsourced tasks, and therefore the number of contractors involved, may increase substantially. By contrast, the resources retained in-house to manage outsourcing may be reduced as a part of the reorganisation.
Typical outsourced activities include;
- Major maintenance, design, engineering and commissioning projects;
- Transport of hazardous materials;
- Plant operation;
- Routine maintenance; and
Questions to consider;
- Does the rigour of contractor management match the risk from the outsourced activities?
- Has the nature of outsourced work changed?
- What balance can be struck between contractor supervision and contractor self-management?
- How familiar is the contractor with the client’s hazards and procedures?
- Are new forms of contractor assessment required (such as auditing)?
Strategies may be needed to develop contractor competence and to upgrade arrangements for verifying that contractors manage their affairs properly. In practice this may well involve:
- Secondment or transfer of own staff to contractors;
- Formation of a long-term relationship with contractors;
- Incorporating contractors into the host’s health and safety management system;
- Requiring long-term contractors to produce ‘safety cases’;
- Shared basic training of contractors across local industry;
- Measuring contractor health and safety performance; and
- Operating approved contractor lists.
Step 1: Planning
Defining the Job
The client should clearly identify all aspects of the work they want the contractor to do, including work falling within the preparation and completion phases.
Both the client and prospective contractor should be involved in the risk management process.
The client should already have a risk assessment for the work activities of his own business. The contractor’s role involves assessing the risks for the contracted work.
The client and the contractor need to agree the risk assessment for the contracted work and the preventative and protective steps that will apply when the work is in progress. If subcontractors are involved, they should also be part of the discussion and agreement.
Contractors must be made aware of the expected standards of performance. Health and safety arrangements, procedures, permit systems and safety policy statement should be shared with the contractor who should confirm their understanding and agree to work accordingly.
Step 2: Choosing a Contractor
Contractors will be selected based upon a range of criteria including: availability, cost, technical competence, reliability and health and safety.
The client has to take reasonable steps to satisfy themselves that the contractor is competent to do the job safely and without risks to health and safety.
The degree of competence required will depend on the work to be done.
The best way of being satisfied of a contractor’s competence is through first-hand experience. A contractor is demonstrably competent if he has previously been used successfully on a similar job (through a cycle of risk management, monitoring and review).
A pre-tender questionnaire (PTQ) may be used to broadly determine the suitability of a contractor. Questions should be designed to check the contractors:
- Experience in the type of work to be one;
- Health and safety policies and practices;
- Recent health and safety performance (number of accidents etc.);
- Qualifications and skills relevant to the contract;
- Selection procedure for sub-contractors (if sub-contractors are to be allowed), or their safety method statement;
- Arrangements for:
- Health and safety training e.g. safety passport;
- Supervision; and
- Consulting the workforce;
- Independent assessment of competence; and
- Memberships of relevant trade or professional body.
References may be needed to verify the information provided.
Once a contractor has been appointed pre-commencement meetings will be required to clarify responsibilities and to ensure effective management arrangements are in place.
Step 3: Contractors Working On Site
Specific arrangements will be required to:
- Manage the movements of contractors on site through visitor sign in controls and possibly permits-to-work; and
- Ensure that all technical and management controls are in place before allowing the work to begin (e.g. correct work equipment and personal equipment is available, safe system of work or permit to work in place).
Arrangements will also be required for:
Information, instruction and training
All parties need to consider what health and safety information needs to be passed between them and agree appropriate ways to make sure this is done.
Instruction and training provided needs to take account of the risks arising from each parties work.
Co-operation and co-ordination
The client should set up regular meetings or briefings to ensure effective liaison between all the parties involved.
The workforces should be part of the liaison arrangements set up by the client and should be involved from the outset.
Management and supervision
The greater the risk posed by the contractor’s work the greater the management and supervisory responsibilities of the client. The client will require sufficient knowledge and expertise to manage and supervise the contracted work.
Step 4: Monitoring the Contract
All parties should monitor their health and safety performance to check that risk assessments are current and that control measures are effective.
The level of monitoring depends on the risks – the greater the risks, the more frequent the monitoring.
Contractors and sub-contractors should carry out day-to-day checks to see that what should be done is being done; and clients should make periodic checks on the contractor’s performance to see if the work is being done as agreed.
Information from proactive monitoring and reactive investigations should be used to learn lessons and improve future performance.
Where requirements are not being met the client should take appropriate action to ensure the work is undertaken to the required standard.
Step 5: Reviewing the Work
Both the client and the contractor should review the work after completion to see if performance could be improved in future.
The client should review both the job and the contractor. Consideration should be given to: the effectiveness of the planning; the contractor’s performance; and how smoothly the job went.
Lessons learnt should be recorded and used to influence future decisions.