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May 17, 2011

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SHE11 – Communication is key to contractor management

Clients have overall control of the work they commission and, as such, can and should influence how and when it happens.


This is the message Alison Gray, a partner at Dickinson Dees law firm, chose to leave delegates with during her presentation on managing contractors in the SHP Legal Arena.


Stressing the importance of ensuring good communication between client and contractor, and contractor and sub-contractor, so that everyone understands clearly their roles and responsibilities during site work, Alison described two recent cases to illustrate how cracks in health and safety can appear if communication starts to break down.


The first case, she explained, involved a manufacturing business that contracted out its site-maintenance to a third party. A worker died on site and, although the HSE initiated a prosecution, the case was later dropped because there was no evidence that either client or contractor could have done anything to stop the incident, or that the incident was foreseeable, while the lines of responsibility for each party prior to the work had been clearly outlined.


The second case, still ongoing, involved a business selling a site it occupied. Under the terms of the sale, it was required to demolish all the buildings on the land, a task it contracted out to demolition contractors.


The initial phases of the work were completed successfully, but problems began to develop when there was a change in contractors, and the role and requirements of the new company were not made clear.


Alison reminded delegates that clients have overall control of the work, in terms of the instructions they provide at the outset, the timescale of the project, the scope of the project, and the ability and power to stop the job at any time.


She warned that “the presence of more than one contractor on site could turn what may have, at first, been a relatively safe task into a hazardous one”. Clients therefore need to think about how work can affect and impact on other contractors later down the line – for example, if asbestos is found during dismantling work, then general work may have to be suspended, timescales may have to be redrawn, and additional precautions to protect workers may have to be implemented.


Clients also need to make checks on the competence of contractors – for example, seeking appropriate references and evidence of them completing similar jobs, as well as checking contractors’ health and safety documents, accident records, prosecution and notices history, risk assessments and method statements.


Explaining how the client in the ongoing case fell down on overseeing the work of the contractor, she said: “Cracks started to appear when the client lost track of what work the contractor was doing, the part of the site it was working on, and the scope of the work going on.”


The importance of communication, documentation, and evidence that the client has monitored its contractor sufficiently may come under scrutiny in the event of an incident and subsequent HSE investigation. Alison warned that multiple prosecutions of several parties are becoming increasingly common, which can cause problems in terms of different pleas, mitigation and defence arguments, while the regulators may use “classic divide and conquer tactics”.


Clients can expect the regulator to ask a number of questions into their management of contractors, such as: how did you check competency?; why did you think the contractor was suitable to do the work?; and did you check the risk assessment?


Alison also warned that when such investigations are taking place, the client should be cautious and seek legal advice as, by the time the HSE comes to interview it, inspectors may already have accumulated a bulk of evidence from the contractor and other parties, leading in the direction of client failures.

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