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How do responsibilities differ between direct service operators and contracted out services?
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Citizen Smith  
#1 Posted : 05 January 2014 14:57:19(UTC)
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Citizen Smith
I'm interested in know people's view on the way H&S responsibilities are different when services are contracted out? For instance, if an organisation operates a service directly, they are clearly responsible for managing the h&s of that service. However, how does that responsibility change when the same service is contracted out? It's an issue I'm being asked about more and more and I know what my view has always been, but I'm interested to hear others points of view first.
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Canopener  
#2 Posted : 05 January 2014 15:55:31(UTC)
Rank: Super forum user
Canopener
IF I am reading your post correctly, I would suggest that the contractor will have the bulk of the responsibility but the client would retain some responsibility (under S3). How much responsibility will be determined by the individual circumstances arising, but in general the client should ensure that the contractor is competent (through the tender process) and thereafter proactively 'supervise' the contract and make reasonable enquiries, checks etc during the course of the contract to satisfy themselves that the contract is being operated 'safely'. Within the contract they may (should) also either 'prevent' the work being further contracted out or satisfy themselves that the contractor themselves has a suitably robust process for ensuring that any sub contractors are competent.
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stephenjs  
#3 Posted : 05 January 2014 16:18:38(UTC)
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stephenjs
In reality the organisation who has the primary contract is solely responsible for the safety of that project - until - the sub contractor has proved that they are competent to be responsible for the safety of the project. Can opener is correct in his statement - but - and I know this to well through HSEinvolvement, if anything happens the insurers and HSE will make the primary contractor solely responsible until he can prove the sub contractor had met ALL the criteria for them to take responsibility
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Steve e ashton  
#4 Posted : 06 January 2014 09:45:42(UTC)
Rank: Super forum user
Steve e ashton
As with so many simple queries this one opens a whole can of worms... The only correct answer is 'it depends'.... What is the service and what (if anything) does the contract say? How robust is the contract? How 'competent' is the client? How much say does the client have in the service delivery - time or way of working? Equipment / resources for doing the work? Place of work? All these factors (and several others) will have a significant impact on how the courts may interpret 'responsibility'. Unfortunately, in far too many instances, the contract is vague and non-specific, and 'issues' can fall between the gaps - in which case - nearly always - responsibility will fall to the client unless they can show very clear intent that the contractor should take it. Steve
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Phil Grace  
#5 Posted : 06 January 2014 16:49:04(UTC)
Rank: Super forum user
Phil Grace
Although not directly related to "H&S" as it applies to the safety of employees it may be of interest to review the decision in this case... where it has been held that a local authority did have a responsibility following brain inury to a pupil who nearly drowned during a swimming lesson. The teaching of swimming and the running of the lesson having been delegated to an independent contractor. http://www.kennedys-law....sereview/localauthority/ The full transcipt of the Supreme Court decision is available (from a link at foot of this press release): http://www.supremecourt....12_0093_PressSummary.pdf Phil
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peter gotch  
#6 Posted : 07 January 2014 17:32:20(UTC)
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peter gotch
Citizen Smith Presume you've seen the guidance at http://www.hse.gov.uk/waste/services/index.htm ?
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jay  
#7 Posted : 07 January 2014 17:48:57(UTC)
Rank: Super forum user
jay
It will to a very large extent depend upon the nature of the service contracted out ( i.e. does the client have a statutory duty to provide the service) and what is the nature of the customers etc--cannot generalize. However, the greater the "degree of control" that a client exercises over the contractor in the execution of the work/activity. the greater will be the client liability,
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Frank Hallett  
#8 Posted : 07 January 2014 18:45:25(UTC)
Rank: Super forum user
Frank Hallett
Good evening Citizen Smith Whilst not a prosecution, you might like to have a look at the following decided Civil Case and see how the principles identified fit into your situation. Happy reading:- http://www.supremecourt....decided-cases/index.html Supreme Court 23 Oct 2013 - UKSC 66 UKSC 2012/0093 Woodland (Appellant) v. Essex County Council (Respondent) Press summary & Judgement (PDF) Frank Hallett Judgments (PDF)
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Citizen Smith  
#9 Posted : 07 January 2014 21:25:55(UTC)
Rank: Forum user
Citizen Smith
Many thanks to everyone for your replies, comments and links. They have been most useful and I'll certainly follow them up. I appreciate it was quite a broad question and the specifics of a contract can make a significant difference. Thanks
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