Contractor Health & Safety: Who is Liable?

Q. Question relating to my liability for the management of other staff within the organisation that I am contracted – I am a Ltd. contractor working for a company (company-A) via an agency. I am managing staff at company-A, some of which are company-A employees, some are Ltd. contractors working directly for company-a and some are temp staff PAYE via another agency. Some of the work being performed by the staff I am ‘line-managing’/giving direction to, are performing tasks for which there are potential H&S implications, such as working in a warehouse, moving boxes, driving a company-a van etc. All tasks being performed are performed with knowledge and agreement of company-a, however company-a has never given any formal agreement and has not performed any risk-assessment.

My question is who is liable for any issues (e.g. injury) that may arise (e.g. if one of the staff members I am managing drops a box on his/her foot)? If sued would: myself/company-a/3rd party (agency) be found liable and accountable?

A (Health & Safety). There is no duty on the agency whatsoever once they have introduced the workers to the end user.

The end user, employing organisation, have ultimate responsibility for health and safety. They will:

• Select a suitable contractor with sufficient skills and knowledge to perform the task risk free
• Assess the risks of the work and consider the safety implications
• Perform a risk assessment of the work activities and the contractor should assess their risks, then both communicate and work together to reduce the risks
• Provide information, instruction and training to all employees involved. Inform the contractor of the risks to them and consider what information and training they may need
• Arrange liaison to co-operate and co-ordinate with everyone responsible for health and safety in the workplace
• Decide how to manage and supervise the work of contractors and agree the nature of controls before work starts.

Where a contractor is employed as a manager, he too will have health and safety responsibilities as a person who is managing processes and people, thus being responsible for day to day health and safety.

Therefore, liability in this instance is likely to be contributory between the end user (employing organisation) and the contracted manager. The split and the level of responsibility will be decided by the courts.

As the manager it is advised to ask about risk assessments, safe systems of work, work procedures and hazards associated to the site and ensure suitable assessments are completed and communicated throughout the workforce whether they are employees, temporary workers or agency staff.

This answer was provided by Qdos Consulting. For more Health and Safety advice or for HR Outsourcing please call 01455 852028 or email sales@qdosconsulting.com.

A (IR35). In relation to you ‘line managing’ the contractors and employees of Company – This could cause IR35 issues because if you are able to for example, approve expenses for the clients own staff, contribute to appraisals, approve leave or be included in any interview processes then you will definitely be integrated into the end client organisation & because of your responsibilities, HMRC will argue that the end client also has a right of control over you, ie that you must follow their protocol in HR matters. If you have a genuine right of substitution then I would suggest that you exercise this, at least once, to place the contract outside of IR35 as at the moment you are currently not in the strongest position for IR35.

For Health and Safety in regards to IR35 this is more of a neutral point so HMRC would not look into this during an enquiry/investigation.

This answer was provided by Qdos Contractor