The company fears dozens of employers across Cornwall, Devon, Somerset and Dorset could be breaking the law unwittingly, because they do not realise they have a legal obligation towards contractors or sub-contractors brought in to work on their premises.
Cornish Mutual has now joined forces with South West legal firm Trethowans LLP to highlight the issue, as part of the insurer’s ‘FarmSafe’ campaign to reduce the risk of deaths and serious injuries caused by accidents on farms.
Both employers and contractors have duties under The Health and Safety at Work Act 1974 – responsibilities defined by criminal law which cannot be passed on from one party to another by a contract. If they do, they could be committing a criminal offence.
Philip Wilson, Business Development Manager for Cornish Mutual, says, “Problems often occur because of common misconceptions about who’s responsible for safety when a tradesman is employed to do a job, which is sometimes compounded by doubts around the tradesman’s legal status. However, the law is clear – in any relationship between a business and contractor, both parties have duties under health and safety law. Similarly, if the contractor uses sub-contractors to carry out work, responsibilities will be shared by all parties.”
He adds, “The extent of the responsibilities for each party depends on the individual circumstances of the project. However, its important tradesmen are clear on the extent of their duties and to have relevant insurance in place as appropriate.”
During 2010/11, the Health and Safety Executive (HSE) prosecuted 49 cases involving 85 offences in the South West - 68 of which led to a conviction. Fines totalled more than £1 million during that period with the average fine costing employers nearly £15,000.
Fines and convictions were for cases involving workers being killed or injured as a result of falling through the roofs of farm buildings, erecting dangerous scaffold structures or falling into, from and being crushed by machinery.
Kelvin Farmaner, Head of the Insurance Litigation Team at Trethowans LLP, says: “Unfortunately we do see all too many legal cases involving deaths and injuries in these circumstances. Farming can be a very risky business but there is a lot that can be done to minimise these risks. Around 400,000 people work in agriculture, which includes farming, forestry, arboriculture, fish farming and amenity use of the countryside – this is less than 1.5 per cent of the working population, but it gives rise to between 15 and 20 per cent of all deaths involving workers in the UK every year.”
Rob Pearce, Principal Inspector in Cornwall and Devon for the Health and Safety Executive (HSE), says: “All parties, both the client and the contractor, need to co-operate to make sure health and safety is properly managed – this avoids things going wrong in the first place. If you use contractors, you cannot simply tell them to get on with the work. If the shared responsibilities are not properly managed, it can lead to events that can prove costly to all parties.”
The Management of Heath & Safety at Work Regulations 1999 require all employers who share a workplace, including on a temporary basis, to co-operate with each other and co-ordinate their work to ensure everyone can comply with the law.
As well as common law duties, there are a number of other statutory duties to comply with health and safety. These range from preventing falls (Work at Height Regulations 2005) to using equipment (The Provision and Use Equipment Regulations 1998) with many others to be considered.
Cornish Mutual and Trethowans LLP have now come up with a three-point plan for farmers and agricultural workers in the South West to follow before they employ contractors to work with them:
1. Select a suitably qualified and insured contractor
2. Plan the work, agreeing exactly what is to be done, by whom and how
3. Properly control contractors on-site with checks to make sure they stick to an agreed safe system of work.
However, Kelvin Farmaner from Trethowans LLP says the status of a tradesman is not always as straightforward as it seems, “The courts will look not simply at the name given to a tradesman, but also matters such as whether he used his own tools; who controlled his work; whose business is he engaged in and where the financial risk lies, i.e. how far he had an opportunity of profiting from sound financial management in the performance of his task.”
Cornish Mutual offers a range of farm, business and personal accident insurance products - www.cornishmutual.co.uk/our-products.
Details of prosecutions and convictions by the HSE in the South West can be found at www.hse.gov.uk/press/south-west.htm.
For more information about Cornish Mutual’s ‘FarmSafe’ campaign, visit www.cornishmutual.co.uk/farmsafe or to contact Kelvin Farmaner at Trethowans LLP, see www.trethowans.com or email email@example.com
Download full press release