A principal's guide to contracting to meet the Health and Safety in Employment Act 1992

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5. Monitoring the contract

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

Best Booths Ltd was engaged by Bay City Painters Ltd to install a new LPG powered spray booth in their panel beating and spraypainting workshop.

Best Booths in turn subcontracted Alastair, an electrician, to undertake the electrical installation work for the booth. While carrying out the installation, Alastair transposed two wires from the gas switch to the burner unit. The miswiring effectively bypassed the burner’s safety mechanisms and resulted in a prolonged gas release prior to ignition.

When the burner unit ignited there was an explosion, blowing the burner directly into Alastair’s face and resulting in him suffering multiple fractures and lacerations to his face, head and vertebrae. His error would almost certainly have been detected if Best Booths had ensured that a qualified gas installer was on site for the initial firing of the booth.

Best Booths Ltd was convicted under s18(1)(b) for failing to take all practicable steps to ensure that Alastair was not harmed while doing work which he was contracted to do.

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 a case 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 (including site-wide meetings as appropriate)
regular inspections as appropriate
raising issues that require attention by the contractor for any unsafe work practices observed
investigating and responding to accidents and incidents
the principal and contractor both meeting their obligations to report serious harm occurrences to the Department of Labour, and
post-contract evaluation of performance (see section 6 of this guide).

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 it 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 that 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.