Contracting to meet the Health and Safety in Employment Act 1992 -- draft guidance for principals
4. Monitoring contractor performance
The case law has established there will usually be a positive duty for principals to monitor contractors' and subcontractors' performance. This is not a duty to constantly check for hazards, but at least monitor workplace conditions and practices and to bring any unsafe practices or conditions to the contractor's attention and ensure they are dealt with.
Where subcontractors are engaged by the contractor, the practicable steps available to a principal will usually decrease the further the principal is removed from the subcontractor's engagement. However, a principal is still required to do what could reasonably be expected in the circumstances. The principal may not have directly engaged subcontractors but they still have a duty to ensure their safety at a level that could be reasonably expected, for example, providing an appropriate health and safety plan, a safe power supply, or access on a construction site.
Example
Tack and Flack Ltd was a firm of building contractors engaged in building an apartment block. It engaged a rigging company, High Wires Ltd, to complete work on site.
Glenn, an employee of High Wires, needed to shift a gas bottle and trolley set from the 5th floor to the 6th floor of the site by crane. He slung the load, and was helping the contractor's dogman, Anaru, to move it by lifting it over a wooden guardrail at the edge of the floor. The crane was taking the weight of the load when it became caught against the handrail, and Anaru asked Glenn to free the snagged load by lifting it over.
The load released with great force, pulling Glenn through the railing to a fall of five storeys. He suffered multiple internal injuries and fractures of the lower limbs, leading to the amputation of a leg.
Investigation determined the cause of the accident to be a combination of the victim's own inexperience in using cranes, poor lifting technique encouraged by a Tack and Flack employee, and an absence of safety devices.
Tack and Flack had control of this aspect of the place of work. The company had identified workers inexperienced in using cranes as a potential hazard on site, but had taken inadequate steps to eliminate the hazard. By allowing the inexperienced worker to complete dangerous tasks under their supervision, they had breached their duty under section 18. The company was convicted and fined.
Nor will it be a defence to a particular incident that the principal did not know exactly what the relevant person was doing at the time. It is sufficient for liability that the principal ought to have known about a general process and relevant steps to be taken. So, for example, in cases where residential construction obviously required a building platform, the principal was held to be liable for a fall when the worker was operating simply from a deck and ladder.
As mentioned above, a head contractor is usually more able to influence general site safety, and less able to influence how subcontractors carry out specialist tasks for which the contractor has limited expertise, such as electrical, specialist machinery, or the use of hazardous substances.
Interrelationship with the contractor's duty as an employer
A principal is required to monitor a contractor's performance in relation to employees' exposure to hazards. This is in addition to the contractor's responsibilities in relation to their employees. What is practicable for the principal will often differ from that expected of the contractor/employer in the circumstances.
If there is a step that it is practicable for a principal to take, then there is a duty to take that step.
The principal cannot distance themselves from what is occurring in the workplace simply because the employer is more directly related to and responsible for the employees carrying out the work. It is a matter of fact and degree in each case. The positive duty certainly means, for example, that "wilful blindness" is not acceptable. In one case, where the principal had taken substantial contractual steps to ensure properly trained workers were employed by subcontractors, including offering training, it was held to be liable because it failed to provide adequate supervision once alerted to the dangerous behaviour of a sub-contractor's employee.
Supervision
The principal's managers or supervisors who are responsible for the contract should receive suitable health and safety training and must have the support of the principal where appropriate.
The principal will require contractors to report all accidents, dangerous occurrences (including significant near misses) and cases of ill health, in line with the principal's internal incident reporting system.
Steps required for monitoring
The following steps are therefore recommended to monitor contract work as it is being undertaken, and identify problems before accidents or incidents occur:
- effective management of the principal /contractor relationship, with all parties being aware of their roles and responsibilities through the contractual framework
- the principal having overall responsibility for the control and co-ordination of the contract
- regular meetings to review health and safety performance
- regular inspections
- raising issues that require attention by the contractor for any unsafe work practices observed
- investigating accidents and incidents
- the principal and contractor both meeting their obligations to report serious harm occurrences to the Department of Labour
- post-contract evaluation of performance (see section 6 below).
There should be arrangements for principals to record progress in health and safety and regularly report on performance to the contractor. This should include recording positive features as well as any deficiencies, as the progress record can be useful in future contracting decisions. Conversely, any significant breach of the terms of the contract could lead to its being terminated and/or the contractor being removed from the principal's approved list.
Subcontractors
As noted above, contractors should seek approval from the principal before subcontracting any work other than indicated in the tender (this will often be a standard condition of the contract). Subcontractors will usually be expected to meet selection criteria which match those used by the principal for selecting the main contractor.