1. Managing Contractors and Sub-Contractors Law and Good Practice
18 March 2019
Sarah Valentine
Senior Associate, EHS
Eversheds Sutherland | LHSG 18 March 2019

2. Contractor Management Themes
Identifying who contractors are
‘Catching’ contractors at the start of a relationship
Providing supervision, without a constant presence
Imparting our standards on to their people
Responding to health and safety concerns
Long term contractors and wellbeing
Eversheds Sutherland | LHSG 18 March 2019

3. Why is it important to manage Contractors? What could possibly go wrong?
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4. How successful is your organisation at managing contractors?
All about you
How successful is your organisation at managing contractors?
Eversheds Sutherland | LHSG 18 March 2019

5. Contractor Engagement Process
Health & Safety Update 2009
Contractor Engagement Process
Step 1: Plan
Step 2: Select
Step 3: Prepare
Step 4: Review
Step 5: Reflect
Eversheds Sutherland | LHSG 18 March 2019

6. Regulatory Requirements
Responsibilities
Eversheds Sutherland | LHSG 18 March 2019

7. Employer’s basic duty:
Responsibilities
Legal Duty – Section 3 HSWA
Employer’s basic duty:
“conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
A different duty to Section 2 HSWA?
Eversheds Sutherland | LHSG 18 March 2019

8. Management of Health and Safety at Work Regulations 1999:
Responsibilities
Regulatory Requirements
Management of Health and Safety at Work Regulations 1999:
Risk Assessment obligation – Regulation 3
Co-operation and co-ordination when sharing a workplace – Regulation 11
Providing information about workplace risks – Regulation 12
Eversheds Sutherland | LHSG 18 March 2019

9. Responsibilities Regulatory Requirements
Construction (Design and Management) Regulations 2015 are more specific:
“must have the skills, knowledge and experience, and, if they are an organisation, the organisational capability, necessary to fulfil the role that they are appointed to undertake, in a manner that secures the health and safety of any person affected by the project.”
Eversheds Sutherland | LHSG 18 March 2019

10. Responsibilities Regulatory Requirements Organisation Capability:
Policies and systems to set acceptable health and safety standards
Resources and people to deliver the standards
“Only enquiries for information that will address the anticipated risks and capability of the supplier should be made – excessive or duplicated paperwork should be avoided because it can distract attention from the practical management of risks.”
Eversheds Sutherland | LHSG 18 March 2019

11. What is not your responsibility?
Responsibilities
What is not your responsibility?
Health surveillance
Provision of:
periodic training
personal protective equipment
work equipment
Consultation
Eversheds Sutherland | LHSG 18 March 2019

12. Responsibilities What is not your responsibility?
Be wary of seeking to enforce policy promises on contractor employees:
“This policy is a mandatory requirement and shall apply to all employees, agency workers and contractors without exception”
Eversheds Sutherland | LHSG 18 March 2019

13. Responsibilities Who is a contractor?
“Anyone who is brought in to work for your company, but who is not an employee”
Is this definition consistently applied?
It’s not about cost or time
Can a two-tier system be used, based on risk?
Eversheds Sutherland | LHSG 18 March 2019

14. Responsibilities Long Term/Preferred Contractors
Beware of contractors that are ‘part of the family’
Properly treated as third parties?
Examples include:
Security
Caterers
Cleaning
Facilities
Eversheds Sutherland | LHSG 18 March 2019

15. Responsibilities In-House Contractors
Employee of Tesco Maintenance Limited fell 30 feet through a skylight, suffering minor injuries
No risk assessment or method statement for work
Tesco Maintenance Limited
Reg 9 of Work at Height Regulations, Sections 2 and 3 HSWA
£300,000 fine
Tesco Stores Limited
Section 3 HSWA and Reg 10 of CDM
£200,000 fine
Eversheds Sutherland | LHSG 18 March 2019

16. Responsibilities Contractors who are ‘eager to please’
Imbalance in power
Contractors who are ‘eager to please’
How do you manage the risk of ‘job creep’?
The difference between advising and mandating – Marks and Spencer and Willmott Dixon
Eversheds Sutherland | LHSG 18 March 2019

17. Responsibilities Calculating Competence
What does competency look like?
Difference between an operator and a supervisor
Checking management competence
Skills, experience and qualifications
Health and safety policy
Check accident/enforcement record
Insurance
Contractors own audit process
References
How can checks be recorded, and what documentation should be retained?
When should it be reviewed?
Eversheds Sutherland | LHSG 18 March 2019

18. Managing those you don’t employ
Challenges
Eversheds Sutherland | LHSG 18 March 2019

19. Managing those you don’t employ
Policy
Communicating the policy internally and externally
Sending documentation in advance
Summarising for the purpose of induction
Different roles and responsibilities
Targeting the right people with the right instructions
Eversheds Sutherland | LHSG 18 March 2019

20. Managing those you don’t employ
Induction
Differing levels for differing risk
Achieving best delivery:
face to face
online
video
reading
When to update/refresh
Eversheds Sutherland | LHSG 18 March 2019

21. Managing those you don’t employ
Discipline, complaints and grievances
How do contractor employees have access to their line manager/supervisor when on your site?
Do they report ‘near misses’ to you?
Are they part of your consultation arrangements?
Avoiding going too far
Adopting a joint approach
Eversheds Sutherland | LHSG 18 March 2019

22. Construction (Design and Management) Regulations 2015
Eversheds Sutherland | LHSG 18 March 2019

23. Right people / Right time Apply proper principles of prevention
Key CDM Objectives
Right people / Right time
Apply proper principles of prevention
Provide information, instruction and supervision
Ensure co-operation, co-ordination and communication
Consult and engage with the workforce
Eversheds Sutherland | LHSG 18 March 2019

24. What is construction work?
“Construction work” means the carrying out of any:
building;
civil engineering; or
engineering construction work.
Includes (in relation to a structure):
alteration
conversion
renovation
upkeep
redecoration
Eversheds Sutherland | LHSG 18 March 2019

25. The detail…
Eversheds Sutherland | LHSG 18 March 2019

26. Who is the Client?
An organisation or individual for whom a construction project is carried out
Those for whom a construction project is carried out in connection with a business, whether the business operates for profit or not.
Eversheds Sutherland | LHSG 18 March 2019

27. Client - Overview of responsibilities
Make suitable arrangements for managing the project
Set out functions, roles and responsibilities of the project team
Allocate sufficient time and resources to complete the project
Ensure effective communication and co-operation
Review and ensure compliance with duties
Provide welfare facilities for workers
Eversheds Sutherland | LHSG 18 March 2019

28. Triggers for notification
When to inform the HSE?
more than 30 days and more than 20 workers working simultaneously on the project; or
exceed 500 person days
Whose responsibility?
Eversheds Sutherland | LHSG 18 March 2019

29. Preferred contractors
Site specific list of contractors that have performed acceptably on previous work
Acts as a starting point; not definitive and a full assessment still required
Important that list is kept up to date – needs your input
Eversheds Sutherland | LHSG 18 March 2019

30. How often to check? Depends on:
Other considerations
How often to check? Depends on:
risk from activity
length/complexity of task
any current concerns about the contractor
Who is appropriate to evaluate the contractor?
Record the checks?
Feedback?
Eversheds Sutherland | LHSG 18 March 2019

31. Who is a Designer?
Those, who, as part of a business, prepare or modify designs (or instruct others to do so) for a construction project.
‘Design’ includes drawings, design details,
specifications, bills of quantity and calculations
prepared for design.
Eversheds Sutherland | LHSG 18 March 2019

32. Designer - Overview of responsibilities
Duties apply as soon as designs are prepared which may be used in construction works in Great Britain
Make sure Client is aware of its duties
When preparing or modifying designs, the Designer should seek to eliminate risks as far as possible and reduce or control them where elimination is not possible
Eversheds Sutherland | LHSG 18 March 2019

33. Who is a Contractor?
Those who (in the course or furtherance of business) carry out, control or manage the actual construction work and can be either an individual or a company
Includes those who use their own workforce to do construction work on their own premises
Eversheds Sutherland | LHSG 18 March 2019

34. Contractor - Overview of responsibilities
Plan, manage and monitor construction work under their control to ensure that it is carried out without risks to health and safety
Where there is more than one Contractor, co-ordinate with the projects team and comply with directions coming from the Principal Contractor and Principal Designer
Where there is one contractor, the Contractor must prepare a construction phase plan
Eversheds Sutherland | LHSG 18 March 2019

35. Who is a Worker?
People who work for or under the control of Contractors on a construction site
Eversheds Sutherland | LHSG 18 March 2019

36. Key issues when considering Workers
They must:
be consulted about matters affecting their health, safety and welfare
take care of their own health and safety and others who may be affected by their actions
report anything they see which is likely to endanger themselves or others
co-operate with their employer, colleagues, Contractors and other duty holders
Eversheds Sutherland | LHSG 18 March 2019

37. Multiple Contractors on site
Eversheds Sutherland | LHSG 18 March 2019

38. Who is the Principal Designer?
Principal Designer appointed by the Client in projects involving more than one Contractor
Can include an organisation or an individual with sufficient knowledge, experience and ability to carry out the role
Must be appointed in writing by the Client
Eversheds Sutherland | LHSG 18 March 2019

39. Principal Designer - Overview of responsibilities
Plan, manage, monitor and co-ordinate health and safety in the pre-construction phase of a project
Prepare and provide relevant information to other dutyholders
Liaise with the Principal Contractor to help in the planning, management, monitoring and coordination of the construction phase
Eversheds Sutherland | LHSG 18 March 2019

40. Who is the Principal Contractor?
Contractor appointed by the Client to co-ordinate the construction phase of a project where it involves more than one contractor
Must possess the skills, knowledge and experience and the organisational capability necessary to carry out its role effectively given the scale and complexity of the project and risks involved
Must be appointed in writing by the Client
Eversheds Sutherland | LHSG 18 March 2019

41. Principal Contractor - Overview of responsibilities
Plan, manage, monitor and coordinate the construction phase of a project
Ensure
suitable site inductions are provided
reasonable steps are taken to prevent unauthorised access
workers are consulted and engaged in securing their health and safety
welfare facilities are provided
Eversheds Sutherland | LHSG 18 March 2019

42. Recent Case Law
Lessons
Eversheds Sutherland | LHSG 18 March 2019

43. Health and Safety Sentencing
Company penalties
Size of the company in terms of turnover (potential liability of parent or other group companies)
Culpability
Harm
Aggravating & mitigating factors
Individual penalties
Fine
Imprisonment
Also consider disqualification
Eversheds Sutherland | LHSG 18 March 2019

44. Sentencing Council Health and Safety Sentencing
Eversheds Sutherland | LHSG 18 March 2019

45. Health and Safety Sentencing
Tariff for health and safety fines based on ‘culpability’ and ‘harm’
Eversheds Sutherland | LHSG 18 March 2019

46. Sentencing Guideline
General Concepts
Seven figure fines are the norm for health and safety prosecutions of large/very large organisations
HSE Statistics:
Eversheds Sutherland | LHSG 18 March 2019

47. Recent Case Law – Lessons
Workplace Separation - Whirlpool
Contractor installing fire detection equipment
Whirlpool employees started conveyor unaware of contractor
No system to prevent conflicting work tasks taking place
Fine - £700,000
Breach – Section 3 HSWA
Eversheds Sutherland | LHSG 18 March 2019

48. Recent Case Law – Lessons
Managing subcontractors - Trenchco Limited and Grangewood Builders
Principal Contractor (Grangewood Builders) appointed Trenchco to carry out specialist demolition work as part of a £5million refurbishment scheme
Employee fell through fragile roof pane, suffering a severed spine as a result
Trenchco supervisor directly controlling the work had no formal training relating to supervision and some of the workers, including the Romanian victim, had to rely on unofficial interpreters to pass on instructions and tell them what the health & safety records contained
Eversheds Sutherland | LHSG 18 March 2019

49. Recent Case Law – Lessons
Competent contractor – Ernest Doe & Sons, Balsham (Buildings) Limited and Strong Clad Ltd
Dengie Crops Limited - Client
Ernest Doe & Sons – Principal Contractor with no experience in construction
Subcontracted work to Balsham (Buildings) Limited
Subcontracted work to Strong Clad Ltd
Principal Contractor and two sub contractors prosecuted
Eversheds Sutherland | LHSG 18 March 2019

50. Supervision, monitoring and control
How much is too much?
Eversheds Sutherland | LHSG 18 March 2019

51. Supervision, monitoring and control
Companies v Individuals
Managing the corporate relationship and managing individuals
Who is best placed:
Procurement
Facilities
Operational staff
Eversheds Sutherland | LHSG 18 March 2019

52. Supervision, monitoring and control
‘Adequate’ monitoring
HSE guidance:
“Contractors are responsible for supervising their own work and for ensuring that they work safely. However, you can’t just leave them from the start to get on with the job and pay them when they’ve finished. Too much could go wrong in between.
You do not need to watch them all the time. You have to weigh up what is reasonable. The amount of contact with the contractor must be related to the hazards and risks associated with the job.”
Eversheds Sutherland | LHSG 18 March 2019

53. Supervision, monitoring and control
When it’s not working
Create a contractual right to terminate the contract
Is the use of ‘poor health and safety performance’ objective enough?
Consider measurables:
Accident/incidents
Audits
Reports from others
Eversheds Sutherland | LHSG 18 March 2019

54. Areas of difficulty How much is too much?
Eversheds Sutherland | LHSG 18 March 2019

55. Areas of difficulty Sub-contractors
Does your contractor have a right to appoint other parties?
If so, how do you know:
They are competent
They will be properly supervised
They have been briefed
They will not appoint other sub-contractors
If there is no right to appoint, how do you control this?
Eversheds Sutherland | LHSG 18 March 2019

56. Contractor went onto roof unsupervised and lost footing
Areas of difficulty
Right to appoint subcontractors
Aldi Stores Limited
Contractor went onto roof unsupervised and lost footing
Fell approximately 4 meters
Longstanding contractor (VBT) subcontracted work out to a self employed subcontractor as unable to get to premises that day to fix a leak
Aldi fined £240,000
VBT fined £5,333.00
Eversheds Sutherland | LHSG 18 March 2019

57. Areas of difficulty Previous convictions Handling previous convictions
Are there different levels of severity?
Understanding the offence and the remedial actions
Eversheds Sutherland | LHSG 18 March 2019

58. Areas of difficulty Insurance
Eversheds Sutherland | LHSG 18 March 2019

59. Areas of difficulty Language barriers What competency is required?
Testing language and comprehension
How are safety messages communicated
Other ideas:
Language lessons
Pictoral instructions
Translators
Eversheds Sutherland | LHSG 18 March 2019

60. Areas of difficulty Lone working/Out of hours
Eversheds Sutherland | LHSG 18 March 2019

61. Questions?
Eversheds Sutherland | LHSG 18 March 2019

62. Sarah Valentine Senior Associate
Eversheds Sutherland | LHSG 18 March 2019