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Beaver  
#1 Posted : 25 October 2020 08:51:21(UTC)
Rank: New forum user
Beaver

We have been reviewing our External H&S Advisor role, and our attention has shifted back to the The Management of Health and Safety at Work Regulations 1999, usefully summarised by the HSE guidance:

As an employer, you must appoint a competent person or people to help you meet your health and safety legal duties.

What a competent person does

They should have the skills, knowledge and experience to be able to recognise hazards in your business and help you put sensible controls in place to protect workers and others from harm.

Qualifications and training

It’s not usually essential for them to have formal qualifications and they’re not required by law to have formal training, although it can help.

Who you can appoint

You could appoint (one or a combination of):

  • yourself
  • one or more of your workers
  • someone from outside your business

Usually, managing health and safety isn’t complicated and you can do it yourself with the help of your workers. You know your workplace best and the risks associated with it.

If there’s a competent person within your workforce, use them rather than a competent person from outside your business.

s7(8) of the Regs explicitly states "Where there is a competent person in the employer’s employment, that person shall be appointed for the purposes of paragraph (1) in preference to a competent person not in his employment"

We are a small (10 staff) very specialist contractor working at times on major UK infrastructure projects or for large corporate clients. Many of them require us to have an external (independent) H&S Advisor as part of their own safety standard. This seems fair enough.

So we find ourselves in a position where many corporate clients and QA systems PQQs require us to have an external H&S Advisor, but the role of that advisor is uncertain, or even contrary to the Reg’s (if employed in preference to "a competent person in the employer’s employment”) . With less than 10 operatives in the field, and the specialist nature of our work, the Competent persons are the ones who drive safety on our worksites (as required in the Reg’s). 

Of course, there is a role for an external H&S competent person to advise on gaps, but that is not the role they recognise when asked to be an external advisor, and so we end with conflict over their responsibilities. 

It would be valuable to get a steer on this apparent dilemma.

Acorns  
#2 Posted : 25 October 2020 11:04:26(UTC)
Rank: Super forum user
Acorns

It looks lik e abalance between legal and contractual.   Have you asked your contractors directly if the external CP is an absolute requirement and if so why.  How have they repsnded if you've already asked. The next question has to be if the client uses an internal or external CP.   I can understand the dilemma, especially overall financial one which loks like it will be a direct added cost to suit just a few clients.  I'd make it clear that that will have to berefelected in the costs but I'd be keen to understand how set in concrete their requirement is.   As you clearly suggest, an internal CP could be a far better proposition than an external one.

Centurion  
#3 Posted : 25 October 2020 11:06:02(UTC)
Rank: Forum user
Centurion

Hi,

What is your specialist contracting activity?

peter gotch  
#4 Posted : 25 October 2020 12:33:58(UTC)
Rank: Super forum user
peter gotch

Hi Beaver

You wrote:

We are a small (10 staff) very specialist contractor working at times on major UK infrastructure projects or for large corporate clients. Many of them require us to have an external (independent) H&S Advisor as part of their own safety standard. This seems fair enough.

Doesn't seem "fair enough" to me! Sounds like what is termed "blue tape".

As AcornsConsult implies many of those who will be drafting these requirements will work for organisations that do NOT rely on external consultants (except for advise on particular specialist issues).

You have set out very clearly the legal and practical benefits of keeping your "competent person" in-house, whilst noting that in law a "person" doesn't need to have legs and arms and could be an organisation such as a company.

Perfectly OK for clients to define their requirements (as long as they also understand that these might have cost implications).

Will depend in part whether you are seeking work directly with the Client or via a Contractor in a sub-contracting capacity.

But, if the latter, then it would be very rare for the Client to ask a prospective Contractor for major infrastructure project about their external competent person - they would expect the Contractor to have in house HSE resources as the usual default.

NOTE the word "resources" NOT "people" - though often "people" are part of the "resources".

Then it would usually be for that Contractor to make decisions as to whether their supply chain can rely on their own HSE resources or whether some or all sub-contractors might need their own - perhaps precisely because what the sub-contractor is to do is very specialised and needs some specific H&S knowledge that might not be within the competence of the Contractor's own HSE resources. 

It will also depend on whether you are wanting to keep an existing supplier relationship or need to jump through some hoops to get on to a list of potential suppliers.

If an existing client, then more likely that they will be prepared to listen to your reasoned argument as to why you do not want an external consultant.

If new, then may be you need to make an appointment of an external consultant just to tick a box. Might add little or no value to your business as the consultant may not be familiar with your processes.

As example, I have dealt with major infrastructure projects for decades, but when it comes to ground investigation I would always recognise that those doing the work are much more likely to be up to date with e.g. guidance on drilling rigs than I am (whether or not those people have any formal H&S qualifications) - the art is to ask the right questions to ascertain that the investigation contractor knows what they are doing and are up to speed.

But you can be creative depending on the precise wording of each prequalification questionnaire. For example, say you are in a trade association, then may be what you benefit from is some regular briefings from that assocation (a "person" in law) - so may be saying that you are a member of that trade association will tick the client's box as being a "competent person" who is "advising" (how ever loosely) you.

So, check the fine print on the PQQs and see how much leeway there is. If you have a good relationship with the client be prepared to discuss whether they would tone down their requirements (if these are unnecessarily over prescriptive). If you have been working for them for several years it may well be that their Contract team may simply over-rule some box ticker.

Beaver  
#5 Posted : 25 October 2020 19:33:35(UTC)
Rank: New forum user
Beaver

Thank you all for your responses. We are specialist ecological contractors - so overlapping with forestry, agriculture, quarrying, waterways, and pure ecology. 

Peter, especially, thank you for a very full answer - all of which makes sense. The reason we were asking is because we had come to the same conclusions. The question was how far to push it; were we just being difficult ? We are finding that a lot of the big companies now are outsourcing their PQQ stuff to Constructionline, Builders Profile etc which just reject anything that does not upload a ‘valid’ answer. Re using a trade body it seems they are cross checking that the external person exists, is qualified, and has been appointed. For those purposes, the likes of FISA have zero value. 

We tried appointing an external person to tick the box, but he wanted to re-organise how we did everything - which takes us back to the original dilemma. 

But thank you all - it is obviously a genuine dilemma and we will have to decide on a case by case basis. It takes me back - 30 years ago on a big construction site a H&S professional once demanded that we adopt a methodology that was so dangerous I refused to let my team carry on and accepted going bust as the safer option. I’m pleased to say that once they found their project stopped, the low loaders on their way, and the client unhappy we managed to have a more constructive conversation. 

A Kurdziel  
#6 Posted : 26 October 2020 09:57:15(UTC)
Rank: Super forum user
A Kurdziel

A lot of these PPQ system are based on standard questions and unless you fit into the standard set up it will reject the answers. I remember trying to get together PQQ for a project some bird strike consultants were bidding for. The whole system assumes that they would be working on a wind farm when the entire project would be office based and nobody would come within a mile of the wind turbines. We just bypassed the questionnaire and found a real person to talk to, but that is not always possible.

peter gotch  
#7 Posted : 26 October 2020 17:25:37(UTC)
Rank: Super forum user
peter gotch

Beaver, those sitting in offices doing outsourced PQQ assessments may well have never heard of FISA.

They will almost certainly not be familiar with the case law on what constituted a "building operation" as defined by Section 176 of the Factories Act 1961, which is relevant to what you do as that definition makes up a substantial part of the definition of "construction work" under CDM.

This means that when your work is part of some infrastructure development those assessing you should quite rightly be deeming your input to that development to constitute part of the "construction work".

That doesn't translate to expecting exactly the same approach as they might expect from any sub-contractor perhaps doing civil engineering works (and even they might often not need an external "competent person").

NOT some pun on your name but relatively recently I was asked how we should manage advance works involving the construction of artificial badger setts. My advice was to apply CDM in full except that I couldn't see any point in providing the end users with a CDM Health and Safety File. I could see a point in retaining records of what had been done, which may or may not have been relevant to the legacy health and safety information for the wider project.

I imagine that the recipients of this construction may well have cursed human beings for the inadequacy of construction, but that the badgers will have sorted out the design to suit their needs.

However, your past experience is that when the crunch happens, some level of sensibility should come into play.

Fully understand that if you appointed any external adviser to tick a box, that if they wanted to shred up your systems then it was time to part company and trust that you know your trade better than an external H&S Consultant - the sort of situation that often gets H&S Consultants a bad press.

Roundtuit  
#8 Posted : 26 October 2020 19:50:15(UTC)
Rank: Super forum user
Roundtuit

A lot of the time it is about answering the question asked - PQQ are a pain, even worse those who profit by developing "schemes" that purportedly address such documents as one of many "providers" each with their own variant to cash in. Take the time, work through each question providing a truthfull answer and 9 times out of 10 you do not need to do anything other than your normal business.

Having persistently been asked for "accreditations - CHAS, Achilles, SafeContractor etc.." the response is normally "we do not supply contract labour to site as part of our market offering, we provide....." attach management certificates & proof of insurance - job done.

Roundtuit  
#9 Posted : 26 October 2020 19:50:15(UTC)
Rank: Super forum user
Roundtuit

A lot of the time it is about answering the question asked - PQQ are a pain, even worse those who profit by developing "schemes" that purportedly address such documents as one of many "providers" each with their own variant to cash in. Take the time, work through each question providing a truthfull answer and 9 times out of 10 you do not need to do anything other than your normal business.

Having persistently been asked for "accreditations - CHAS, Achilles, SafeContractor etc.." the response is normally "we do not supply contract labour to site as part of our market offering, we provide....." attach management certificates & proof of insurance - job done.

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