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Posted By Sam Talbot
Esteemed Peers,
We have a contractor who wishes to remove redundant refractories from an old kiln in a vacant building.
How do we stand legally if we give them exclusive access to the building, are they then wholly responsibile for H&S within the buiding, or as it's our site, do we still have responsibility.
If anyone has a copy of a suitable contract that they could let me have, it would be much appreciated.
Regards,
Sam.
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Posted By Graham Peters
The HSE has good guidance in their publication, "Use of Contractors a joint responsibility" / INDG 364, which is free.
Contact your area HSE office or info line on 0870 1545 500
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Posted By Neil Pearson
Could be an interesting debate. You can hand over control of the site to the contractor by contract, but you must hand it over completely. Another quesiton is the material - is it your waste? If so, be careful what happens to it, because you will always be the waste producer and must comply with your duty of care.
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Posted By Robert Paterson
Hi Sam
I would think that you would still have a duty of care under Section 3 of HASWA 1974.
Regards
Robert Paterson
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Posted By ken mosley
Irrespective of what you put into a contrct never lose sight of the basic tenet "You cannot contract out of the law".
You will have duties under sections 2&3 of Haswa. That is persons not your employees and persons in control of premises where work is being undertaken.
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Posted By Rob T
Neil Pearson is absolutely right in his reply. You can by contract hand over the responsibilities but it must be complete and you retain no control. You must in the first place however, list the hazards that you are handing over.
This used to be known colloquially as a "green field site" although that may mean other things these days.
Once the above contract has been signed - the HASAWA applies to the contractor for the determined period of time.
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Posted By Heather Aston
Sam
Rob & Neil are right. We have done just this for construction work on a site. You must hand over all responsibility for the site for the period of time - this goes as far as saying that your own employees then have no automatic right of entry but must gain access via the contractor - it only really works on a vacant site. Note that if you still own/lease the site you retain responsibility for things like notifying them about hazards on the site - e.g. asbestos. CDM may also apply.
BTW Ken it's sections 3 & 4 not 2 & 3 of HASAWA that refer to persons not in your employment (yes I know I'm a pedant, but it's Friday afternoon).
Heather
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Posted By ken mosley
Heather,
Sorry about the typo
Ken
ps. Section 4 is not often used, but there are some references on the HSE prosecutions database. We have first hand knowledge of the HSE acting against a client for whom we were working.
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Posted By Andy Baxter
The work will more than likley fall under CDM. this means you will need to appoint a Planning supervisor and Principal Contractor. The CDM area should be defined and the Principal Contractor must control H&S within the area.
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Posted By Merv Newman
I wont comment on the legal side, just a fatal accident that occurred during re-lining of a kiln. In the absence of senior worker, bored young man started prising the odd brick out of the lower levels. It all fell on top of him.
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Posted By Frank Hallett
All the above excellent advice and derived from the definitive case law -which is still the Associated Octel case!
To avoid all risk you will not only have to not control the site, you must effectively have no right or interest in the site or any of the materials present or generated.
It would also be a sensible move to discuss the issues with your company insurers; they will almost certainly have some views!
Frank Hallett
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Posted By Stuart Nagle
Sam.
As the contractor will be working on your site (within your undertaking) your company has a legal duty of care to ensure that they work safely.
See Regina -V- Associated Octel
Stuart
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Posted By Rob T
Stuart,
You are wrong I'm afraid. It is not your undertaking if you have relinquished ALL control. I will reiterate - you only have to ensure that hazards are notified to the NEW CONTROLLERS of the area.
It's funny that two people have quoted the same case to demonstrate two different points of view.
In the past I have had it cleared by the HSE that a site has been handed over in it's entirety to A.N.Other and there was no duty applied to us. This was in the demolition and building of a new school.
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Posted By Neil Pearson
The principle here is occupier's liability. The "occupier" of the site holds the s.4 duty under HSWA. And the case law (not to mention the Occupier's Liability Acts, which changed the common law) shows that whoever has control of a site is the occupier. There can be more than one occupier of course if you don't sort this out properly in the contract.
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Posted By Stuart Nagle
Rob T.
Thanks for that Rob, but Sam's posting refers to providing access to a vacant 'Building', not a vacant site ... hence my response.
Had the posting stated that the vacant 'Building' was in fact a vacant site, my response would not have referred to the case law Regina -V- Associated Octel...
Regards...
Stuart
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Posted By Neil Pearson
Not sure if I've understood what you're saying Stuart, but you can completely hand over control (and your s.4 duties) of a building within a site, too. That's my understanding anyway.
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Posted By jackw.
Hi, You need to apply the CDM regs to all demolition work.. suggest you get a copy and check your responsibilities. HASAW will also apply..it always does.. thankfully.
cheers.
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Posted By Sam Talbot
Interesting thought on CDM Jack, however, as it's only the refractory lining being removed, not the structural parts of the kiln, we didn't consider that the work would fall under CDM - unless somone know different!
Many thanks to those who have posted, all views have been helpful.
Regards,
Sam.
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Posted By jackw.
Hi, my error I assumed you were taking the lot down. Blame post industrial area I live in.. everything that smacked of industrial production just went.. If you are still unsure why not ask the "horse" and contact the HSE for advice/views.
cheers.
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