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 HSE 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 covers these topics too if you need staff trained on this subject.
How to Manage Contractors
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 situation.
This article sets out the overarching legal framework and shares general advice from the Health and Safety Executive on the management of contractors to help inform the right choice in your situation.
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What is the Law around an employer’s duty of care to contractors?
The law is divided into two branches (or systems), civil and criminal, which have different purposes. Any given event may give rise to both civil and criminal consequences.
Criminal law: if minimum legal standards are met, the enforcing authority may prosecute the offender in the criminal courts.
Civil law: if an individual suffers loss (injury / ill-health or death), the victim, or his dependants, may sue for damages (compensation) in the civil courts.
Consider an accident where an apprentice carpenter cuts off his fingers using an unguarded band saw.
He may well take a civil action against his employer, blaming the employer for negligently causing his injury and seeking compensation (damages) for his loss.
A criminal prosecution may also be taken by the HSE (assuming the accident was reported, or the HSE was otherwise made aware). The purpose of the prosecution would be to punish the employer (through a fine and/or imprisonment) for failing to comply with health and safety legislation (the guarding requirements of the Provision and Use of Work Equipment Regulations – PUWER).
The key differences between civil and criminal law are below.
|Civil Law||Criminal Law|
|Tort e.g. negligence*||Crime e.g. breach of Health and Safety at Work Act or specific regulations|
|Civil wrong||Criminal offence|
|Wrong to an individual||Offence against society|
|Action taken by injured party||Prosecution taken by enforcing authority / Crown Prosecution Service|
|Heard in civil court||Tried in criminal court|
|Loss necessary for action||Loss not necessary|
|Seeks compensation for loss||Seeks to punish for breach of law|
|Liability proven on the “balance of probabilities”||Guilt proven “beyond all reasonable doubt”|
|Can be insured against (Employers Liability Insurance is generally compulsory)||Cannot be insured against fines|
Negligence may be explained as careless conduct injuring another. For the injured party (claimant) to succeed in a negligence claim, he must prove:
- That the defendant (usually the employer) owed him a duty of care;
- That this duty was breached; and
- That the claimant was injured as a result of the breach.
What is meant by ‘Duty of Care’?
Prior to 1932 there was no generalised duty of care in negligence. The tort was only applied in particular situations where the courts had decided that a duty should be owed, such as road accidents or dangerous goods.
Lord Atkin, in Donoghue v Stevenson (1932), attempted to create a general principle that would cover all circumstances where a liability for negligence could exist. He said:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
When does a duty of care exist?
The requirements that must now be satisfied before a duty of care is held to exist were established by Lord Bridge in Caparo Industries v Dickman (1990):
- Foreseeability of the damage, i.e. whether a ‘reasonable person’ would have foreseen damage in the circumstances;
- A sufficiently ‘proximate’ relationship between the parties (i.e. a neighbour relationship); and
- It must be fair, just and reasonable to impose such a duty.
Relationships that are sufficiently proximate to be deemed a neighbour relationship include:
- Employer to employees;
- Employer to contractor and contractors employees; and
- Occupier to authorised visitors.
The common law duty of care owed by an employer to its employees was defined in the case of Wilson’s and Clyde Coal Co v English (1938). In this case, the employer was compelled by law to employ a colliery agent who was in charge of safety in the mine. Nonetheless, when an accident occurred, the employer was held liable. The case confirmed that the employer’s duty of care to his employees was personal and could not be delegated to a manager or safety advisor.
The case also determined that employers must provide:
- A safe place of work and equipment;
- Safe systems of work; and
- Reasonably competent co-workers.
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.
Breach Caused the Injury – The claimant 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 defendant.
Contributory Negligence – Contributory negligence arises when the claimants own carelessness, or disregard for personal safety, contributes to the injury or loss which arises partly because of the claimants own fault and partly because of the fault of another (the defendant).
Damages recoverable in respect of the claim will be reduced to the extent the court thinks is fair having regard to the claimant’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 torts 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 another employee the employer will be held vicariously liable for the losses incurred.
What does the HSE advise on how to manage contractors?
As mentioned, 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.
Some typical examples of outsourced activities include:
- Major maintenance, design, engineering and commissioning projects;
- Transport of hazardous materials;
- Plant operation;
- Routine maintenance; and
Key issues to address
- 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.
We offer a range of online safety courses that can help you ensure contractors work safely