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The duty of care to subcontractors

The duty of care to subcontractors

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When you look back over the past 15 years or so, it’s clear that electrical contractors are better covered by health and safety laws and regulations than perhaps they have ever been.  This is reflected in the data collected on accidents at work. According to HSE data, there has been an overall downward trend in the rate of all workplace injury in the construction sector since 2001/02. In fact the rate in 2013/14 was around 40% less than in 2001/02. In the electrical contracting sector, the rate of reportable accidents is now only 15% what it was in 2001.

le this is real progress, one of the increasing challenges facing the electrical contracting sector (and the wider contracting market) is managing the health and safety of subcontractors on site.  Electrical contractors know they have a duty of care to protect the health and safety of their employees at work, but how many are aware that their duty of care extends to the use of subcontractors, both bona-fide and labour-only?  The results of a recent survey that the ECIC conducted among workers across the construction sector showed that over 30 per cent anticipated increasing their use of bona-fide subcontractors and over 25 per cent planned to increase their use of labour-only subcontractors. With the long term growth trend in new orders for construction work (see here for details) and skills shortages impacting over 77 per cent of the contractors we surveyed, the use of subcontractors to help meet demand looks set to continue.

So where do the responsibilities lie?

Labour-only sub-contractors will usually have their tools and materials supplied by the contractor and work under their direction.  In legal terms this is usually seen as a ‘master and servant’ 'relationship.  As such, the contractor’s duty of care towards these sub-contractors should be the same as to their own employees and their health and safety responsibilities and actions must reflect this. 

Bona-fide sub-contractors, on the other hand, tend to be specialist contractors with their own tools, materials and system of work.  They are also responsible for managing their own health and safety risks for their element of the contract.  

However, the main contractor (possibly the ‘principle contractor’ on construction work with more than one contractor) is contractually accountable for works undertaken by the sub-contractors they employ, and still retains responsibility for overall health and safety on a contract.  A contractor must therefore satisfy themselves that their sub-contractors’ health and safety documentation is adequate and their practices are in keeping with their own health and safety culture and requirements.  Every contractor has a legal responsibility to deliver and follow safe systems of work, as underlined by CDM 2015 and other health and safety legislation.

Testing the theory

If there’s no influence or control over a subcontractor’s health and safety practices, a seemingly avoidable incident can easily escalate into a financial and emotionally costly dispute, including possible legal action.

A paper trail to evidence that health and safety risk management practices are firmly in place and have been followed can make a big difference to claims outcomes.  Evidence that the worker understood the hazards of the work they were undertaking and the risk controls in place can be used to successfully defend a claims case if the prescribed control measures were not followed properly – but without this evidence, firms will be in a much weaker position.  Our survey found that while 75 per cent of contractors sign site-specific health and safety risk assessments at the start of each and every job, 25 per cent either not completing this assessment or just not sure.

What is needed is a proper risk assessment and safe system of work, detailing the risks and control measures shown to and signed by the workers involved. This provides evidence that they have read the risk assessment and understood the hazards and risk control measures prior commencing the work, such as the correct personal protective equipment. 

Regular health and safety communication with subcontractors on risk issues should include their experience, and their own expertise. The ECA has extensive tools and guidance for contractors needing support in this area, including the eRAMS risk assessment and method statement e-service.  Building a health and safety culture, and communicating it, is good business, but it’s also vitally important to dot the ‘I’s and crossing the ‘T’s to help keep workers safe, and to keep claims at bay.

EC Insurance Company Limited (ECIC) is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. FRN:202123