Contractors, are you covid-ready to do your health and safety bit in the workplace?

It might be typically focused on employers' obligations, but health and safety law equally applies to contractors and the self-employed if their work activity poses a risk to the health and safety of anyone else, writes Fieldfisher health and safety law expert Elliott Kenton.

Following the outbreak of Covid-19, workplace health and safety is more topical than ever before. Indeed, the Health and Safety Executive (HSE) has had its budget increased specifically to investigate and enforce Covid-19-related breaches.

The long and short of health and safety law amid the coronavirus, and even once the pandemic passes, is that the responsibility for reducing the risk of Covid-19 transmission in the workplace needs to be shared by employers and their independent suppliers alike.

‘Covid-secure’ guidelines

On May 11th 2020, the UK government released eight sets of "Covid-secure" guidelines for various kinds of workplace, many of which are likely to involve contractors.

Although the guidelines provide some clarity for employers, there continue to be gaps concerning those that do not neatly fall into the categories of either employer or employee.

These include contractors and the self-employed, who have so far not been given any guidance on how to perform work activities safely, in accordance with government recommendations.    

The guidelines do however stipulate that employers must work with any contractors sharing the workplace to ensure everyone's health and safety is protected from the risks presented by Covid-19.

The engager's perspective

The government has acknowledged that workplaces providing services can be complex environments due to the many types of workers involved, including employees, contractors, self-employed and agency workers.

However, everyone, regardless of their worker status, has an obligation to assess and manage risks of Covid-19. 

Under the government's guidance, employers (or ‘engagers’ in contractor parlance) will be expected to implement the following:

  • Covid-19 risk assessments

These will need to be undertaken immediately for work activities which have been taking place during the lockdown, or as soon as possible for activities set to resume following a period of suspension.

The employer should consult equally with workers (and a health and safety representative elected by workers or a trade union), and contractors regarding the Covid-19 risks relevant to the worksite.

Once the risk assessment has been prepared and agreed, the guidelines stipulate that employers should share the results with their entire workforce.

  • Working from home practices

The guidelines stipulate that people should continue to work from home where they can until further notice. Therefore, if a contractor is able to work from home, they should be encouraged to do so by the end-user or party who has engaged them.

  • Know your workforce and customers practices

Employers should identify Clinically Vulnerable Individuals (CVIs) and Clinically Extremely Vulnerable Individuals (CEVIs) in their workforce and, where possible, their customer base, particularly if the work involves entering other people's homes.

Careful assessments are needed to decide whether CVIs and CEVIs are required to perform activities that put them at risk.

  • Social distancing

Work activities that cannot be performed from home must be undertaken at a social distance (i.e., two metres away from other people).

Where social distancing cannot be followed in full, employers should consider adopting measures to mitigate transmission risk, such as:

-- planning for the minimum number of people needed on-site;

-- keeping activity time as short as possible; and

-- using barriers to separate people from each other.

Other possible measures include reducing the number of people each person has contact with through fixed teams or ‘partnering,’ and making sure the working environment is suitably ventilated.

  • Hygiene

Increased hygiene should be implemented for any work activity, including regular cleaning of work areas, and providing increased handwashing and hand sanitisation facilities.

The contractor's perspective

If contractors feel that their end-user whose workplace they work in is not adequately protecting their health and safety, they should speak to the end-user’s representative in the first instance, or the agency through which they have been engaged.

If the end-user representative fails to address their concerns, the contractor may want to consider reporting the issue to the HSE.

However, contractors should bear in mind that health and safety is not the sole responsibility of employers. Health and safety law is clear that there is a mutual obligation for contractors and employers to work together when it comes to protecting the health and safety of others.

Therefore, where possible, it is recommended that the self-employed and contractors implement Covid-security measures recommended by government guidelines independently of the employers that engage them.

This is particularly important if a contractor is concerned that the employer is not implementing the recommendations satisfactorily.

Adoption, reconfiguration and adjustment

Adopting Covid-secure measures should not prove too difficult for many contractors, who should already have health and safety policies and procedures in place, providing they do not meet with any resistance from their workplaces.

Some recommendations, including reconfiguring workspaces, may be expensive and onerous for contractors, who may want to think about changing the way they work to negate the necessity of these modifications.

However, the majority of measures do not have to be time or cost-intensive.

In practical terms, covid-19 risk assessments can be kept simple and supplement existing risk assessments, while increased handwashing/sanitisation can be implemented by contractors independently of employers. Social distancing and increased cleaning may prove trickier depending on the working environment, but are likely to be achievable with planning and some adjustments to working practices.

Further guidance

Helpfully, the HSE has published a brief guide for organisations in receipt of services from contractors. It has also produced examples of where on-site contractors have failed to meet their obligations to comply with applicable health and safety regulations.

One HSE case study, which perfectly illustrates how contractors and their clients must work together to ensure compliance with health and safety law, states:

“A worker was killed when she was run over by a vehicle operated by a contractor. Neither the employer nor the contractor had identified pedestrian routes to keep pedestrians separate from moving vehicles.

“Additionally, the contractor hadn’t given his drivers adequate training to make sure they operated the vehicles safely. The employer should have identified risks from the contractor being on site and agreed measures to control those risks before the work started. In this scenario, it is foreseeable that both the employer and the contractor would be prosecuted for health and safety offences.”

On this example alone, it is possible to see how such circumstances could apply to the risks posed by Covid-19. Working collaboratively and not in silos, is how contractors can best mitigate those risks.

Wednesday 10th Jun 2020
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Written by Fieldfisher

Fieldfisher is a European law firm with market leading practices in many of the world's most dynamic sectors. They are a forward-thinking organisation with a particular focus on energy & natural resources, technology, finance & financial services, life sciences and media.
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