In construction, subcontractors are used often and on most projects. It's quite rare to have a single contractor handle everything. From scaffolding, groundworks and service connections, to electrical and mechanical work, glazing and asbestos removal. Specialist subcontractors are used to carry out specific packages of work.
Contractually, of course, the main contractor may be taking on the responsibility for delivering the project. In terms of the quality of the finish, and the deadline. The client might not even know the details of every subcontractor used. Where the client has appointed a contractor, if that contractor chooses to subcontract out portions of the work, the client will still hold the main contractor accountable.
But what about health and safety? Who's responsible for that?
You might think that each contractor is responsible for their own health and safety. And they are. But if you use subcontractors, you might also have some responsibility for their health and safety too.
Employers have legal health and safety responsibilities to their employees. But what about people that are not their employees. What about employees of other contractors, that happen to be working on the same site? Are main contractors liable for their subcontractors? And is a contractor responsible for another contractors health and safety?
If we look at the Construction (Design and Management) Regulations (also known as CDM), we can find the answers.
CDM applies to every construction project, and all construction work. So, no matter the size, duration, or who your client is, CDM applies to your work as a contractor. It is an important piece of legislation if you work in construction, and failing to comply with CDM can lead to prosecution, fines and even prison time.
Under CDM, there must be a principal contractor on any project with more than one contractor. So, if you're using subcontractors, at any stage in the project, there must be a principal contractor. In practice, this is usually the main contractor.
5.—(1) Where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time, the client must appoint in writing...
(b)a contractor as principal contractor.
This role of the principal contractor is important because the principal contractor is the contractor who has the overall responsibility for health and safety on site. That means that they are responsible for the health and safety of their own workers, but also other contractors on site.
Appointed by the client (sometimes automatically in the case of domestic clients), the principal contractor has additional duties under CDM. Every contractor has duties under CDM, but the principal contractor has a few extra ones. This includes health and safety responsibilities, not just to subcontractors they have appointed, but to any other contractors working on the project.
The principal contractor has several legal duties under CDM relating to other contractors. This means that they almost become jointly liable for the safety of other contractors. Should an accident happen, both the subcontractor and the principal contractor can be looked at for failings in health and safety.
13.—(1) The principal contractor must plan, manage and monitor the construction phase and coordinate matters relating to health and safety during the construction phase to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety.
So the principal contractor must plan, manage and monitor the construction phase of the project. Not just their own work. And they must coordinate matters relating to health and safety. Again, not just in their work, and their employees, but all construction work carried out on the project.
Not only does the principal contractor have the general responsibility for making sure that construction work is carried out without risk to health or safety, but they also have more specific responsibilities when it comes to the health and safety of other contractors.
- The principal contractor must ensure that—
- a suitable site induction is provided;
The principal contractor also needs to provide subcontractors with an induction to the site, as it is their site, and they are in control of it. Anyone who works on the site should be inducted by the principal contractor, with the site health and safety hazards, risks and controls explained to them.
The principal contractor must also make sure that other contractors:
- The principal contractor must—
- organise cooperation between contractors (including successive contractors on the same construction site);
- coordinate implementation by the contractors of applicable legal requirements for health and safety; and
- ensure that employers and, if necessary for the protection of workers, self-employed persons—
- apply the general principles of prevention in a consistent manner, and in particular when complying with the provisions of Part 4; and
- where required, follow the construction phase plan.
Therefore, if a subcontractor doesn't comply with health and safety laws, then both the subcontractor and the principal contractor could be in trouble. The subcontractor for breaking the law. And, the principal contractor for not ensuring the subcontractor implemented legal requirements.
In practice, this means having procedures in place to manage subcontractors. These rules can be set out in the construction phase plan, and form part of a vetting procedure when appointing subcontractors to work on your projects.