Selection and Control of Contractors

The Selection and Control of Contractors is an area that some businesses do not devote enough time to, and do not understand their responsibilities fully.

Reliance on the use of contractors has increased dramatically over recent years in most employment sectors.

Organisations are increasingly concentrating on core activities and operations and are taking on contract staff for chore activities as well as for specific (construction) projects. Many organisations, for example, make use of contract cleaning staff in place of their own cleaning operatives.  Many organisations also take advantage of the increased flexibility with respect to labour that comes from the appropriate use of contract staff.  Many seasonal activities, such as fruit picking have always relied on temporary labour.  In recent years this trend has increased, with more and more organisations taking advantage of the increased flexibility from the use of contract or agency workers.  This increased use of contract staff may present the organisation’s management with various challenges, but in most situations, the advantages outweigh the disadvantages.  It is essential, however, that the health and safety implications of this increased use of contract staff are considered and appropriate controls implemented.

Although there are many reasons for using contractors, there are also some disadvantages, including unfamiliarity of the contractor with the employer’s: business, Health and Safety management systems, procedures, work processes, premises, and plant and equipment.

The principles of effective management of contract staff are effectively the same whether the organisation (referred to as the client) uses one individual or a variety of different contract organisations.  It should be remembered, however, that self-employed contractors and contractors working for small organisations may be less aware of health and safety.

A common misconception about responsibility

There is a common, but flawed, belief that appointing a contractor absolves the client from liability for the health and safety aspects of that contracted work. Managers and Directors within organisations can be heard to voice the opinion: “they are the experts in what they do; surely all of the health and safety is down to them to sort out”.

The House of Lords addressed this issue in R v Associated Octel Ltd, 1996. In this appeal case, Octel Ltd argued that section 3 did not involve liability for the actions of independent contractors. The appeal failed, and the court ruled that Octel Ltd was liable under section 3(1) of the Health and Safety at Work Etc. Act, 1974.  This case clarified that work carried out for a company, such as the work of a contractor, was still regarded as a part of their undertaking and so they retain a duty of care even when the work has been contracted out.

A better understanding of the position

Work undertaken for a client by a contractor is covered by a civil contract. It is good practice for health and safety requirements to be written into such a contract. Health and safety responsibilities, however, are defined by the criminal law and they cannot be passed on from one party to another by a contract. In a client/contractor relationship, both parties will have duties under health and safety law. Similarly, if the contractor employs sub-contractors to carry out some or all of the work, all parties will have some health and safety responsibilities. The extent of the responsibilities of each party will depend on the circumstances.

Controlling Contractors

Setting up to control the work of contractors can be broken down into five steps:

• Identification and the work to be done
• Selection of the Contractor
• Site work by the contractor
• Monitoring the activities of the contractor
• Reviewing the process

Identification of the work to be done

The client should identify all aspects of the work that they want the contractor to do. This should also include work falling within the preparation and completion phases of the project. This information should then be used to identify the hazards associated with the work, allowing the risks arising from that work to be assessed and then avoided, eliminated and reduced. If a contractor has been selected, this is a good time to start discussions with them. The client must provide the contractor with relevant information about site hazards, such as: a copy of the asbestos register, copies of site plans, location of underground services, etc.

Selection of the Contractor

The client must select a contractor who can carry out the work successfully, not only in terms of delivery but also from the point of view of health and safety. The client needs to be satisfied that the contractors are competent to do the work. This means that they have sufficient skills and knowledge to do the job safely and without risks to health. The degree of competence required will depend on the work to be done.  Typically, the client should ascertain and/or obtain:

• the contractor’s experience in the type of work to be done,
• what their health and safety policies, arrangements and practices are,
• their recent health and safety performance (e.g. number of accidents, recent and pending prosecutions or enforcement notices, etc.),
• what qualifications and skills they have
• the level and type of health and safety training and supervision they provide,
• if the contractor will use sub-contractors and, if so, what selection procedures will be used,
• a copy of the contractors(proposed) safety method statement,
• their arrangements for consulting their workforce;
• if they have any independent assessments of their competence,
• if they are members of a relevant trade or professional body,

Some client organisations routinely operate an “approved contractor” list where the answers to these questions have already been established. Some clients will accept new contractors onto this list if they have registered with a third party accreditation scheme (such as: CHAS, Safecontractor, Contractor Plus, Constructionline, Exor, etc.).

The client must ensure that the contractors know and understand what performance is expected and should explain their health and safety arrangements to the contractors. The client should familiarise the contractor with any relevant procedures and permit systems, as well as with the health and safety policy statement and should establish that the contractors understand these and will act in accordance with them.

Site work by the contractor

The client should agree with the contractor, before work starts, how site access is to be obtained and what rules are to be in place, etc.  In most cases, contractors will be required to sign in and also to sign out from the site. It is important for the contractor to have a named site contact and also for the client to have the name and contact details for the contractor’s representative (such as foreman, leading hand, etc.). The contractors should undergo some form of site induction process, to ensure that they are aware of the site rules, fire alarm and evacuation points, etc. It is also in the client’s interests for the contractor to have their own site safety rules relating to the project work being undertaken.

If a formal Permit to Work (see later) system is in operation, these should be addressed and completed before the work is started.

Monitoring the activities of the contractor

Different projects will require different levels of monitoring activities, as will different contractors (established as the relationship develops). The client should monitor the activities of the contractor to ensure that the work is proceeding safely and as planned. This can take many forms, but it should always be recorded as this forms part of the client’s due diligence defence if things do go wrong. Part of the process may involve a formal inspection of the work activity to ensure that safety standards are being maintained and that the contractors’ risk assessments and method statements are being adhered to. The client should, where appropriate, ask to see supporting documentation (such as scaffolding inspection sheets, induction training registers). The client should also establish that other control measures are in place, such as: physical barriers, appropriate use of PPE (hard hats, high vis clothing), etc. The client and contractor should investigate any accidents, incidents or concerns that arise and formulate a suitable corrective action.

The use of a Permit to Work system should also be monitored/audited. This is discussed in a separate article.

Control of Contractors: How much can failure cost?

In a UK court case from a few years ago, a major high street retailer and three of its contractors have been fined for putting people (including members of the public, staff and construction workers) at risk of exposure from asbestos-containing materials (ACMs) during the refurbishment of stores in Reading and Bournemouth. The client was fined £1 million (with costs of £600,000), while the contractors were fined £200,000, £100,000 and £50,000 and were also ordered to pay costs.

During the three month trial, the Crown Court heard that construction workers at the two stores removed ACMs that were present in the ceiling tiles and elsewhere. The court heard that the client did not allocate sufficient time and space for the removal of ACMs at the Reading store. The contractors had to work overnight in enclosures on the shop floor, with the aim of completing small areas of asbestos removal before the shop opened to the public each day. The HSE also alleged that the client failed to ensure that work at the Reading store complied with the appropriate minimum standards set out in legislation and approved codes of practice. The company had produced its own guidance on how asbestos should be removed inside its stores. The court heard, however, that this guidance was followed by contractors inappropriately during the major refurbishment. One contractor failed to minimise the spread of asbestos to the Reading shop floor. Witnesses said that areas cleaned by the company were re-contaminated by air moving through the void between the ceiling tiles and the floor above, and by poor standards of work.

The principal contractor at the Reading store admitted that it should not have permitted a method of asbestos removal which did not allow for adequate sealing of the ceiling void, which resulted in risks to contractors on site. The principal contractor at the Bournemouth store failed to plan, manage and monitor the removal of asbestos-containing materials. It did not prevent the possibility of asbestos being disturbed by its workers in areas that had not been surveyed extensively.

The fines, in this case, were large, but so also was the time investment from the various parties, including the client, to prepare for and attend the trial. Control of contractors is an important area that clients need to address. This situation may be exacerbated by the HSE Fee for Intervention scheme.

Control of Contractors: How much can failure cost (2)?

A global drinks (AD) firm has been ordered to over £277,000 in fines and costs after a contractor was killed as a result of falling six metres through a fragile skylight on a warehouse roof.

Further to this, the worker’s employer (P) must pay just over £30,000 for his failure to protect his staff.

Mr Rogers was working for P in November 2010 on a contract from AD to fix a leak in the warehouse roof and to clean gutters. The judge said the eight-metre high roof was made of corrugated asbestos panels which were fragile along with skylights. The Judge commented: “Yet neither of the brothers (who had to travel a significant distance) was given the proper crawling boards despite the dangers “being blindingly obvious as a matter of common sense”.

Mr Rogers suffered fatal injuries when he fell through one of the 80 skylights on the roof and hit the warehouse’s concrete floor. His brother Trevor, who was also employed by P, had been working alongside him on the roof.

Canterbury Crown Court heard that even though P’s employees went up on the roof as often as every month, there were no crawling boards or scaffolding, harnesses or nets.

As the warehouse owner, AD was responsible for the site and should have ensured its contractors planned and executed work safely.

P was fined £26,667 with £4000 costs after he admitted breaching Section 2(1) of the Health and Safety at Work Act. AD pleaded guilty to a charge under Section 3(1) of the same Act, was fined £266,677 plus costs of £10,752. AD had responsibility for the site and should have ensured contractors planned their work to ensure it was done safely.

HSE inspector Guy Widdowson said:

P should have provided his workers with suitable equipment” and added “AD could not contract out its health and safety responsibilities just by contracting out a particular job. This is a tragic case in which a devoted husband and father and grandfather lost his life at work … It is sickening that such incidents happen despite the widespread industry knowledge of the risks of working at height and on fragile roofs with equally fragile skylights. His death was entirely preventable.

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