The HSE have some guidance on this

http://www.hse.gov.uk/falls/window.htm

My view is that the hierarchy of controls should be followed. It is reasonably practicable for the windows to be cleaned from ground level using a waterfed pole system, thus eliminating the risk from work at height.

Personally I would not allow this guy to work like this on any of my sites.

Thanks for both replies and for the very quick response, much appreciated.

"more relevant" is probably not the expression I would have used. The article certainly does illustrate very well how the judgement in R v Associated Octel can be applied to window cleaning though. Well spotted.

Surely it's a case of needing to know all the circumstances of the window cleaners task. A competent tradesman using a regularly inspected ladder could argue his risk assessment determined it was the safer method to clean the windows from a ladder instead of using the water feed as the excess water could result in pools of ice at this time of the year.
Mind you, it might not be acceptable in a court of law. ;-)

In his response canopener said "Octel is a well known S3 case and while this might well be relevant, knowing the idiosyncrasy's of the legal system, that is by no means a given. It's application may even differ depending on whether the window cleaner is a self employed sole trader or an employee of a larger company."

I would respectfully point out that Lord Hoffman (who led the Lord's Appeal) would disagree with canopener on this one. He said "That duty, (i.e. the duty imposed on the employer) is defined by reference to a certain kind of activity, namely, the conduct by the employer of his undertaking. It is indifferent to the nature of the contractual relationships by which the employer chooses to conduct it."

So it would make no difference whatever if the window cleaner is a self employed sole trader or an employee of a larger company.

My home window cleaner uses a ladder to access the first floor, he leaves the ladder to access windows over a g floor extension and walks on the pitched roof.

I actually saw him footing the ladder while his employee accessed a first floor window over a porch. Is this a one off?

The comment by exdeeps is extremely relevant!

If a thorough RA is undertaken that compares the use of ladders against the use of "brush on a stick with water" systems; I contend that that the ladder will prove to be the safer option in most cases. The ergonomic consequences and loading on the body from having to manipulate and control an [up to] 3m stick filled with water is almost never considered at all when considering the replacement of ladders. And what about overheads - obstructions, cables, wind??

For the legal-eagles out there:-
What is the possibility of a self-employed contractor [the window cleaner] bringing a successful Civil case for being damaged by their clients blanket insistence on the the use of "brush on pole" systems where ladders would be less harmful? Is there a true "choice" involved for the contractor?

Frank Hallett

Thought I'd throw in my sixpence worth...

The thread has established that ladder work is fine. In addition I've seen folks trying to clean third storey windows with those pole things (OMG! Manual Handling did you say?!)

Just from what I've read of the Octel case on this thread, the impression I get is the tanks belonged to Octel and so the responsibility for having them cleaned therefore belonged to Octel - therefore courts found them liable (apologies for any over-simplification!)

With windows being a part of the buildings, and not specialist equipment I would err with what Canopener said because I figure there is sufficient difference in the items being cleaned for the "ever-changing" Case Law to suggest a different outcome - also agree with "not our call to make"

The R v Associated Octel case does not single out "specialist equipment" but simply says that any activity that is required to be done in order to carry on the "undertaking" is the responsibility of the employer and I quote from Lord Hoffman's speech "The conduct of the undertaking included having the tank repaired, whether by employees or contractors". Any reasonable person would conclude that cleaning windows is part of the "conduct of the undertaking" and would therefore come within the scope of this case.

The way I view this situation is the window cleaner is employing (for simplicity sake) a window cleaner who is then being exposed to the risks of ladder work (whatever magnitude that may have!) and so I would look at this as the employer should be responsible for the safety of that employee no matter whose windows were being cleaned.

If the chap who cleans my windows fell off his ladder, I would expect most, if not all of the flack to go in his employers direction, even though it was my windows he was cleaning.
Obviously if I had provided a sub-standard ladder, then I would be liable to a degree but that is entirely another kettle of worms...

Over simplified, yes, but I still think of the likes of (no offence!) window cleaning and floor polishing and tending the head office lawns as tasks entirely peripheral to the undertaking of a business.

In the case of General Cleaning Contractors Ltd .v. Christmas (1953), a window cleaner was hurt in a fall due to a failure to provide work equipment by his employer; my point with this is there was no mention of any liability on the owners of the premises at all or indeed any mention of whose windows were being cleaned - just that the employer was liable.

Bigrab

I actually don’t think that we are worlds apart (although you may feel otherwise) and you may well be 100% right, Octel might well be entirely relevant to such a situation.

However, I would suggest (again) that such are the Idiosyncrasies of our legal system at times, it is difficult if not impossible to second guess whether a court would accept ‘this or that’ case law as being relevant or any subsequent decision a court may come to as a result. This is demonstrated time and again where one court’s decision (based on case law) is overturned by a higher court, i.e. even courts get it ‘wrong’. Ultimately whether a court accepts or considers case law as being relevant to the case in hand is down to – the court based on the individual facts of the case.

Whether an unsafe act by a ‘contractor’ will in itself will always lead to either a prosecution or liability (a successful prosecution) of the client under S3 is debateable and of course entirely dependent on whether the enforcing authority chose to go down that route; and if they don’t then the case law as far as that particular case goes is irrelevant or superfluous.

In 2010 Veolia were found guilty of S2 & S3 offences (S3 as the fatality related to an agency worker) following a fatal accident while litter picking along the A228.

http://www.hse.gov.uk/pr...asp?SF=CN&SV=4167956

The responsibility for litter picking in this case rests with the highways authority (it is part of their undertaking), in this case Tonbridge and Malling Borough Council. On the face of it this would appear to be a classic S3 case along the lines of Octel, however, while Veolia were prosecuted, found guilty and fined I can find no evidence of a ‘parallel’ S3 case against Tonbridge and Malling Borough Council for the same accident, although it clearly relates to an unsafe working practice by the contractor while carrying out the undertaking of ‘another’.

I would also hazard a guess that whether the overall method (set down by the employer) was unsafe or whether the way that the individual employee subsequently choses to do the work was unsafe are 2 somewhat different situations and I would suggest that the latter is less likely to incur a S3 liability than the other. I am happy to be wrong, as I can’t second guess what a court may decide when considering such a case. They're 'in charge', I'm not!

The full judgement of the Octel Case is at:-

http://www.publications....gmt/jd961114/octel01.htm

"................................the question of fact which should have been left the jury is simply whether having the tank repaired was part of the conduct of Octel's chemical undertaking at Ellesmere Port, I cannot imagine what evidence could have been called by the appellants which would have led a properly instructed jury to return a negative answer. The tank was part of Octel's plant. The work formed part of a maintenance programme planned by Octel. The men who did the work, although employed by an independent contractor, were almost permanently integrated into Octel's larger operations. They worked under the permit to work system. Octel provided their safety equipment and lighting. None of these facts was disputed. In these circumstances, a properly instructed jury would undoubtedly have convicted. I would therefore apply the proviso, dismiss the appeal and affirm the conviction.

I don't think we are worlds apart either, and I agree that previous case law is not always seen as relevant in a particular case by the presiding Judge.

The Veolia case may not be relevant however because I suspect that while the Council have an overall responsibility to arrange for environmental cleanliness it may be that the whole responsibility for the day to day work passed to Veolia when the refuse collection service was privatised. It would be difficult to say without seeing the transcript of the case and the Judge's comments.

If I were advising a company on their use of contractors I still think I would be erring on the side of telling them to make sure that the contractor has a safe system of work and sticks to it or they may be liable to prosecution because of the Octel case.

its all a matter of balance between the use of one system over another system and their different risk ratings noting that the manualhandling of a long pole full of water and its water feed pipe running along the ground [as has already been noted] with environmental leachate has its problems too

NB: One window cleaner I know of has gone back to using ladders because he had to add in some costs to cover the use of the pole kit he bought and thereafter he lost work because of the additional costs he had - so U cannot win in some cases

I suggest that some sort of very simple managing system be brought in so as your employer is covered

The Octel case has been used since the HoL judgment by enforcers to try to suggest that the use of any contractor means that their activity becomes part of the client 'undertaking' and thus more duties are owned by the client. If that were really true, there would be little point in using contractors at all.

Octel hinged around 'undertaking', (rather than 'contractors'), and as has been said, this was a chemical tank, within a chemical plant, of a chemical company. It needed specialist cleaning, which was therefore part of the chemical plant undertaking.

Quote from the judgment:

"Anything which constituted running the plant was part of the conduct of its undertaking. But there will also be ancillary activities such as obtaining supplies, making deliveries, cleaning, maintenance and repairs which may give rise to more difficulty."

If you are a company of accountants, and get a contractor to clean your windows, is this an essential part of your accountancy undertaking? No, but general duties to select a competent contractor, and provide hazard-free building / windows still apply, but most of the responsibility to comply with HASAWA is the employer - ie. window cleaner.

Window cleaner 'undertaking' - cleaning windows.

Octel is not relevant, however convenient it might be to try to force fit it into other circumstances. Defining the extent of 'undertaking' is clearly a challenge (or we wouldn't have a HoL case at all).

Interesting debate.

If it's too high to get a ladder in place it's probably too high to use a pole & brush sytem!

Frank Hallett