How would you deal with a possible wasp nest in your loft? Seek out the expert? How do the professionals deal with wasp nests?
So let us set the scene before we start, you are an elderly couple living in a nice well maintained bungalow. When outside in the garden you see a constant flow of wasps entering and leaving the roof void via a small gap in the faciers.
You go into the loft and can see evidence of wasps. You seek out some professional help via the local telephone directory.
You make the call and arrange for a pest control specialist to call. The contractor has a good reputation for dealing with wasp nests and he advises you to keep out of the loft and await his visit. Happy so far.
Unbeknown to the householders the contractor sub-contracts the visit to a sub contractor in the same field.
The sub contractor arrives on site to review the problem. He enters the loft to assess the situation. He is up in the loft on his own when he suddenly appears back at ground level.
He shouts to the householders that he must go an call his boss and leaps into his van and departs never to be seen again.
Then a neighbour calls to say he can see flames coming from the roof.
The fire alarm are called but too late to save the roof from major damage.
Guess what? The sub contractor had obviously decided the best way to remove the wasps nest was to burn it out. Not one of his best decisions.
If this was a “Carry on” film the scene might have been quite amusing but unfortunately this scenario is based on a real case which has occurred in Lincolnshire recently.
The elderly couple have had to be relocated in sheltered housing and are missing their own home and processions.
Although this event involved a domestic client it highlights just how difficult it is for individuals to find those who are truly competent. How many times do you ring a number for a company only to find they are based miles away and the person who turns up to the job is a sub contractor who may or as in this case may not be competent.
The main contractor had a contract with the householder and as such would be liable for the actions of their negligent sub contractor. He has offered to pay the cost of moving their possessions but this is not going to take away the distress the elderly couple have had to endure. We just hope everyone has current insurance.
On an organisational level there is still potential for events such as this is we do not select and control contractors adequately. The same could apply to a company who is appointing contractors, who equally may appoint sub contractors to complete the work on their behalf. See our article on “Control and selection of contractors” on page 4.
Control of Contractors
As the scenario on page one highlights the control of contractors is still a big issue for members of the public and employers.
More and more organisations are now contracting out some of their services, this can include the traditional work undertaken by contractors such as building alterations and electrical work in addition to cleaning and catering services which are now quite often undertaken by an external contractor.
Some employers are under the false impression that if they call in a contractor then safety responsibilities rest solely with the contractor which is definitely not the case.
The main problems that may arise from employing a contractor with inadequate health and safety arrangements are:
- Failure to ensure health and safety of their own employees.
- Failure to ensure health and safety of persons other than their own employees
- Failure to provide safe systems of work
Legal duties start with the common law duty of care, employers owe a duty of care to those they can foresee being effected by their activities and site. Therefore any contractor working on the employer’s site are owed a very similar set of duties to those provided to their own employees. The main general duties of care are to :-
- Select competent workers
- Provide suitable information
- Safe plant & equipment if the employers equipment is to be used by the contractor
- Safe working environment and a safe place of work
- Safe access and egress to the workplace
There are several statutory duties within the Health and Safety at work Act 1974, the Employer, i.e. the person in charge of the company or building still has overall responsibility for health and safety even though the contractor has a responsibility as well. This point has been argued in the courts and case law has established just how far the duty of the employer extend.
HASAWA Section 3 – Employer to Non Employed Persons
The employer must take steps as far as is reasonably practicable to protect non-employees on the premises. This involves issuing information, training and PPE if necessary to ensure others are not exposed to risks. This section also covers the self employed who have the same duties to others effected by their actions. A case against Swan Hunter Ship established the clear requirement on employers to pass on H&S information not only to their own employees but to contractors on their site as well.
The prosecution of Octel who allowed a contractor to use a lamp from their store in a flammable atmosphere, the lamp was not suitable and caused an explosion and the overall responsibility was established to be Octel’s rather than the contractors.
House of Lords ruling S3 HASAWA
The employer free to decide labour arrangements but is under a duty to exercise control over the activity and to ensure that it is done without exposing non-employees to risks.
Employers can no longer simply rely on the safety systems presented by their specialist contractors to satisfy their duties under Section 3. Employers will be expected to develop their own procedures to prevent injury to contractors which must include protecting them from risks associated with the employers own premises as well as the risks arising out of the safety systems developed by the contractor for the job.
It is important that contractors not only provide their own equipment but that it is also in good working order and has up to date statutory inspections where applicable.
HASAWA Section 4 Duties on the controller of premises
This section aims to protect people who are not employees but who are using the premises for work. e.g. an engineer working in another company’s premises in the lift shaft. This may include safe access and egress as well as safe plant.
The duty is to take measures as is reasonable for a person in his position to take, to ensure as far as is reasonably practicable, that the premises, all means of access and egress available to those using the premises, and any plant or substance on the premises are safe and without risks to health.
There is a legal requirement under the Management of Health & Safety at work Regulations to co-ordinate and co-operate, this applies where employees of more than one origination will be working together.
The Construction (Design & Mgt) Regulations require amore formal system of managing contractors where the Client (Main Employer) must ensure they select competent contractors who have adequate resources to undertake the project.
The employer and occupier have a duty to contractors but equally need to ensure that the contractor is going to carry out the work safely not exposing their employers to risk.
It is essential therefore that whether the contract is for a one of job or a major contract that major checks are undertaken to ensure the quality of the contractors selected. Much of this check can be undertaken prior to the company coming on site. From the information gathered many organisations compile an approved list and only these contractors will be used. The higher the risks associated with the task, the more complex the activity the more vigorous the contractor selection process needs to be.
Selecting Suitable Contractors
Basic Information to request
- H&S policy
- Sample risk assessments
- Insurance details
- H&S responsibilities within the organisation
- Training arrangements
- Details of whether workers will be employees or sub contractors
- Details of accident records and any HSE notices
- Details of how the company monitors H&S
Information to be provided to the contractor
- Local rules – i.e. no smoking, wearing of PPE, only electrically tested equipment allowed on site, no use of host company’s equipment without permission)
- Arrangements for permits to work
- Signing in and security
- Contact points
- Prohibited areas
- Details of the job and any hazards present ( overhead cables, fire, biological contamination etc)
- Welfare arrangements
For Larger Contracts
More formal arrangements should be in place to ensure effective communication, co-operation and co-ordination. This may include H&S meetings, inspections of the contractors undertakings, accident reporting to host company, monitoring of safety rules via inspections and spot checks.
If you have contractors permanently based on your site you need to check H&S arrangements as an ongoing basis not just as a one off of at the beginning.
Think about the following:
- Safety meeting between the employer and contractor at the beginning of the project.
- Hazard identification and risk assessment—are the key issues covered relevant to your site.
- Awareness of Fire and Emergency plans
- Arrangements for co-ordination, liaison and communications.
- Method statements.
- Permits to work.
- Induction training
- Environmental matters including waste management
- The use of common facilities, plant and equipment
- Accident reporting and reporting of unsafe conditions
- Appointment and management of sub-contractors.
- Safety audits and/or inspections of the contractors arrangements.
Employers must establish procedures for the selection and management of contractors. However the process needs to reflect the hazards and risks of the work activity and the site itself. The higher the risks the greater the duty to the contractor and to the employers own employees.
The checks carried out for a contractor who is coming on site to do some basic redecorating will still need to consider their work methods, competence, equipment and substances but a far more vigorous approach would be needed when selecting a contractor who will be maintaining your building on your behalf.
The Construction (Design and Management) Regulations give some guidance on the selection of contractors and principal contractors, with “Appendix 4” of the regulations giving fourteen different aspects which should be reviewed when selecting principal contractors and designers for major notifable projects. The guidance gives practical examples of the questions to ask and the different documents which could be used as evidence.