Law Case Reveals Extent of Health and Safety Legislation when Dealing with Independent Contractors

Ref. HSE v Marshall Morris and Poole (MMP)

Many employers dealing with situations without a great degree of safety risk on a day to day basis consider large sections of the Health and Safety legislation to be redundant in relation to their own business. The case referenced above, however, has shown that when an independent and even self employed contractor is considered an ‘employee’ in the eyes of the law, steps must always be taken to ensure safe working conditions.

The action was brought by the Health and Safety Executive (HSE) against Property Management Company and Estate Agents ‘Marshall, Morris & Poole’ following the death of Mr Roger Jary, 79, a self employed contractor who fell through the plastic roof of a car port in Welshpool.

The obligations of employers to employees is set out clearly in Section 2 of the Health and Safety at Work Act 1974, but further provisions are made to address the issue of independent contractors who are owed a duty as ‘temporary employees’. The Act states:

It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practical, that persons not in his employment who may be affected thereby are not exposed to risks to their health and safety.

In the case of HSE v Marshall Morris and Poole, Mr Jary was an independent, self-employed contractor undertaking work to a car port and guttering on behalf of MMP. He fell 2m when the roof panel he was on collapsed. In prosecuting, the HSE stated:

“If your business is managing properties, then you must ensure that anyone you engage to maintain those properties is competent and carries out their work safely to ensure their safety and that of others.”

MMP was found liable by Chester Crown Court and admitted to breaching Section 3(1) of the Health and Safety at Work Act of 1974. They were fined £75,000, with an additional £11,153.95 in costs. Crucially, they had failed to check both the contractor’s competence to carry out the work and the steps he had taken to ensure his operations were safe.

Perhaps the most interesting aspect of this case, however, is whether an Estate Agent can be reasonably considered to have the knowledge and experience to assess the safety practices of an independent contractor who has, in the majority of cases, been instructed to carry out work beyond the competency of the agency.

Add to this that one can look back on a situation with the benefit of hindsight and very easily find fault, and consequently reasonable justification for a hefty fine, and the job of the Estate Agent becomes very difficult when dealing with contractors.

In situations where additional expertise is necessary, therefore, agents should not hesitate to instruct a fully qualified Chartered Surveyor to assess the situation and avoid potential problems. Many specialise in matters of health and safety and their structural expertise can be important. With the case concerning MMP, the safety of the roof should have been formally assessed, including its ability to hold weight, which could accurately have been carried out by an appropriate surveyor.

If you are an Estate Agent managing properties and contracting independent maintenance workers, click on the link below to chat to a local surveyor about how he can help you fulfil your Health and Safety obligations.

www.propertysurveying.co.uk

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