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Contractors at Risk

15 January 2006

FMs are increasingly finding themselves on the wrong side of the criminal justice system as a result of shortcomings in their approach to health & safety. Mitchell Winter says safeguard your employees, contractors, business, shareholders and property.

PICTURE THE SCENE. It is a beautiful Sunday morning on the golf course or at home with the family. Just when you least expect it, the tranquillity is broken by the familiar sound of your mobile phone. A voice at the other end says, “There’s a problem at work, one of the contractors has had an accident and has been rushed to hospital.”

Your first thought may well be: ‘Why phone me? It’s the weekend and I am off duty.” But, the voice on the other end of the phone goes on to say that they have phoned you because the accident is reportable under The Reporting of Injuries, Diseases & Dangerous Occurrences Regulations 1995 (RIDDOR). From somewhere in your subconscious comes the thought that, under UK Law, you are responsible for your contractors health, safety and welfare and suddenly the tranquillity of your weekend turns to panic. Thoughts come thick and fast. “Where did I put those method of work statements and risk assessments? In fact, did I ever actually receive them?”

In the last 18 months there has been a rise in the number of criminal prosecutions that directly implicate FMs and others responsible for managing commercial premises. For example:
● Simon, Freeman & Mitchinson: A health & safety enforcement officer publicly stated that it was one of the worst sites he had ever seen. A contractor’s employee fell to his death on site and as a result the property owners and their contractor were successfully prosecuted. None of the accused ever dreamt that they would appear at the Central Criminal Court or that their failure to manage the site properly or to ensure the health, safety and welfare of persons working on site (even though they were not in their direct employment) might result in fines and costs in excess of £120,000.
● McDonald’s and co-defendant Jones Lang LaSalle, were fined £75,000 for failing to ensure the health, safety and welfare of an employee who fell from a height and sustained long term back injuries.
● Managing agents, Hartnell Taylor Cook, and its client were also successfully prosecuted recently.

These well known names are just the tip of the iceberg in a long line of criminal prosecutions in 2004/2005 The common denominator amongst all the successful prosecutions is inadequate documentation on the part of the client and contractor coupled with a lack of understanding of the implications of the legal requirement to provide a safe place and system of work. This is further compounded by the fact that unlike conventional criminal law that assumes you are innocent until proven guilty, in health & safety law you are guilty until proven innocent.

This is probably why, in the majority of cases brought before the courts, the defendants plead guilty, knowing that the alternative will be an uphill battle to prove one’s innocence. When pleading guilty, it is common practice to request that mitigating circumstances be taken in to account. However, if you have failed to obtain suitable and sufficient documentation by way of a risk assessment and method of work statements, you will find that you have little or no defence.

The legal requirement for a risk assessment has been with us since 1992 when the Management of Health & Safety at Work Regulations were first introduced – now affectionately known as the ‘six pack’. These regulations were subsequently amended in 1999 and one of the pertinent amendments was that only ‘competent’ persons should undertake risk assessments. The meaning of ‘competency’ is interpreted as having a thorough understanding of the subject matter, knowing the legal requirements and having received suitable and sufficient information, instruction and training. Thereafter, experience will play an important role. Sadly, this fact and the associated legal requirements are often overlooked.

One of the reasons for the competency amendment was the fact that the majority of enforcement officers considered that many of the assessments they inspected prior to 1999 were just glorified checklists. These were neither suitable nor sufficient for their purpose and failed to demonstrate a safe system of work as required by the Health & Safety at Work Act 1974. Despite the change in the legislation, many risk assessments are still produced in this way.

The principle purpose of a risk assessment is to identify reasonably foreseeable hazards that may be encountered, to examine existing control measures and to decide what additional measures may be required in order to either eliminate the hazard at source or to control the risk to an acceptable level. The term ‘hazard’ seems to cause confusion. Quite simply, a hazard is anything that has the potential to cause harm. When reviewing your contractors’ risk assessment, you should look for the essential ingredients (see panel):

In 2005, Winter & Co undertook a survey to establish the level of awareness that prevailed amongst FMs in respect of the ‘six pack’. The results made depressing reading. Only 20 per cent of the 500 companies surveyed were aware of the regulations, let alone the requirements for a suitable and sufficient risk assessment.

The six-pack is a very specific set of regulations that leave little to doubt. It deals with a wide range of subjects from risk assessment requirements, welfare facilities, personal protective equipment, display screen equipment, manual handling and, last but not least, the provision and use of work equipment regulations, which is cited in just about every criminal prosecution.

The latter is far reaching and covers all work equipment ranging from standard tools that you might find in any toolkit to all the plant and machinery used to run your premises. The key to complying with this regulation is to understand that all tools and equipment must be suitable and sufficient for their purpose.

A substantial number of prosecutions have been successful because it has been proven that the tools or equipment used was neither suitable nor sufficient for its purpose or that it had not been maintained correctly. In addition, there is a requirement for defect reporting. This regulation catches most parties unaware but failure to comply results in prosecution in the criminal courts.

As well as the risk assessment, in order to demonstrate a safe system of work you need to obtain a method of work statement from your contractor. The principle is quite simple in that the job/task or project needs to be written down, identifying the various stages of the job and how they are to be undertaken and completed. The method of work statement should then correlate with the risk assessment documentation. In my experience, the majority of contractors undertaking small works and maintenance appear to be at a loss when it comes to method of work statements - all too often providing something that is neither suitable nor sufficient for the purpose. I have found that a good place to start the six-pack.

Contractors should be carefully scrutinised. Don’t be afraid to ask awkward questions - find out exactly what experience they have in this field, their accident statistics and training records. Finally, ask yourself this question - would you knowingly drive a car without a valid driving licence or insurance? If your answer is no, ask yourself why you should drive the corporate business premises vehicle without the legally required health & safety documentation? i.e. risk assessments& method of work statements.

Six steps to risk assessment:
1. Identify the hazard
2. Assess who may be harmed and how
3. Examine the existing control measures
4. Consider further control measures that may be needed
5. Evaluate the risk (low, medium or high)
6. Carry out a residual evaluation to demonstrate the effectiveness of the additional control measures

● Mitchell Winter is managing director of Winter & Company, Health & Safety Consultants has a useful Q&A page.

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