Can you make a work accident claim as a contractor?
Four out of every ten people who work in the construction industry do not have a traditional employment contract. Instead, they are employed as contractors, subcontractors, independent contractors, self-employed workers and casual labourers.
Where a worker is injured on site, his employment status will determine who is responsible for the accident and whether a compensation claim for the building site accident can be made.
Employer's duties on a building site
The Health and Safety at Work Act 1974 sets out the legal framework for ensuring a high level of safety in the workplace. Under this Act, employers are required to provide a safe environment, safe equipment and safe work processes for all their employees.
The Management of Health and Safety at Work Regulations 1999 imposes a duty on employers to plan, control, organise, monitor and review their work in order to manage the health and safety risks. Essentially, the employer must conduct regular risk assessments and replace any dangerous tasks with those that are perceived to be not dangerous or less dangerous.
Employees must receive adequate health and safety training and supervision where appropriate.
Contractor duties under the Construction (Design and Management) Regulations 2015
The Construction (Design and Management) Regulations 2015, which came into force on 6 April 2015, transfers certain site safety responsibilities onto the principal contractor.
Specifically, the principal contractor must:
- Plan, manage, monitor and coordinate the entire construction phase
- Prepare an ongoing construction phase plan
- Effectively manage health and safety risks
- Ensure all workers have inductions and training specific to the site, together with any further training they need
- Ensure that all workers have the skills, knowledge and experience and to carry out their work safely and without risk to health.
Workers duties under the Construction (Design and Management) Regulations 2015
Individual workers also have duties under the CDM 2015. They are responsible for taking care of their own health and safety, and of others who might be affected by their actions.
Workers may also be under a duty to report anything they see that could be a health and safety risk; although one worker's failure to report a hazard that injures another worker is very unlikely to make that first worker individually liable with regard to a claim.
Who is responsible if someone has an accident?
On a building site, it is possible that the employer (site owner), the principal contractor and an individual worker each owes a duty of care. The contractual chain can be complex and there may be two or three people responsible for hiring the claimant, and for ensuring the claimant's safety.
Each may be liable, in whole or in part, for the claimant's injuries. This will depend on the nature of the employment contract and the circumstances surrounding the accident.
It will also depend on the insurance provision. When someone sustains an injury in the workplace, cover is usually provided through a compulsory Employer's Liability insurance policy. This protects employees, contractors, temporary and casual staff, but not the self-employed.
Workers engaged as independent contractors, subcontractors or agency workers may carry their own insurance for themselves and their workers. If they do not, then the main contractor will probably carry the risk of making sure that everyone is adequately insured.