embedding health and safety requirements in procurement steve sumner obe chair public services group...
TRANSCRIPT
Embedding health and safety requirements in procurementSteve Sumner OBEChair Public Services GroupChair National Safety Symposium Working PartyDirector, Steve Sumner Associates Ltd
Who am I?• EHO by training• Been working in Health and safety since 1980• Local authority regulator with a number of LAs• Seconded to HSE• Former National Health and Safety Policy Adviser to LGA• Director of Steve Sumner Associates• Chair IOSH PSG• Chair NSS Working Party
What is driving contracting out?• Local Government• CCT • Best value
• Public services are under severe financial pressure• Restricted budgets• Need to make savings• Improve services?• Not just an issue for public services
What is driving contracting out?• Private sector want to cut costs• Reduce over heads• Improve profitability • Global competition• Future uncertain?
What is being contracted out?• Things you might imagine• Refuse collection• Cleaning services• Facilities management• Home helps• Grounds maintenance
• Things which are not so obvious• Prison management• Prisoner transport• Regulatory services• Adult social care• Education?
• Free schools• Academies
• Pretty much anything!
Why is it important to embed H&S into the procurement process?• Legal duty S.3 HSWA 1974• Organisations cannot export their risks to contractors• Remains part of the organisations undertaking• If something goes wrong regulators will pursue the client• Organisations need to protect clients and service users• Need to protect organisations reputation• Must effectively monitor contractor performance
Recent Supreme Court decision23rd October 2013• Woodland (appellant) v Essex CC (Respondent)• Civil tort of negligence• Essex contracted out swimming lesson to Direct Swimming
Services• In school hours and part of the curriculum• July 2000 Appellant (aged 10) suffers serious hypoxic brain
injury• Appellant issues proceedings against a number of parties inc
Essex CC• Alleged Essex CC owed her “non delegable duty of care”• Essex CC denied the duty was owed and applied to have it
struck out• Allegation struck out by High Court and Court of Appeal• Supreme Court allows the appeal
Recent Supreme Court decision23rd October 2013
• Reasons for the judgment• Non delegable duty arises when• Claimant is a patient or child• Claimant in custody or charge of defendant• Therefore defendant has positive duty to protect the claimant• Claimant has no control over how defendant performs is obligations• Claimant delegated functions which is part of the positive duty, contractor
takes on the duty• Contractor has been negligent in carrying out the function
• Press release comment• The recognition of this duty has become more significant as a result of
increased outsourcing of educational and supervisory functions……• www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0093_Judg
ment.pdf
How can things go wrong?• Failure of H&S officers and procurement officers to
communicate• Failure of H&S officers to be involved in the process• Failure to describe the service accurately• Failure to understand the risks involved• Failure to recognise that risks will not be effectively managed
in tender• Failure to select a competent contractor• Cost being the final arbiter• Insufficient attention paid to H&S issues• Failure to effectively monitor the contractor
Silverhills school asbestos contamination prosecution • Feb/March 2004, three weeks• Replacement of 30 windows• Asbestos Insulation Board surrounds disturbed• Work stopped when problem discovered• Asbestos contaminated the school• Contractors, staff and pupils exposed to amosite asbestos fibres
Silverhills School asbestos contamination prosecution • Derby City Council two charges • Failing to secure safety of employees• Failing to secure the safety of non employees
• Peter Westran, Director of Horizon Glass and Windows Ltd, four charges• Failing to identify type of asbestos• Failing to carry out a risk assessment• Failing to give information, instruction and training to employees• Failing to prevent the spread of asbestos
• Phil Robinson, Head teacher, one charge• Failing to inform contractor of presence of asbestos
Silverhills School asbestos contamination prosecution • Derby City Council, pleaded guilty • Fined £50,000 plus £20,000 costs
• Peter Westran and Horizon windows• Fined £5,000 and £10,000 respectively
• Phil Robinson, Headteacher• Found not guilty
• Total cost of cleanup and loss of equipment £640,000• School was closed for 8 weeks, children dispersed to eight
local schools• Loss of reputation
Very recent prosecution• 14th November 2013• Equitas Academies Trust, owner and operator of Aston Manor
Academy, Birmingham• Birmingham Glass Services Ltd• Replacing windows Spring/Summer 2012• BGS not inducted and told by AMA site manager best of his
knowledge there was no asbestos.• AIB used as packing• Removed with crow bar, broken and dumped on site
Very recent prosecution• Two BGS employees exposed, no training, no PPE• £20000 decontamination costs• Part of school not available for second part summer term• BGS fined £5000 plus £1969 costs HSWA 74 S2 (1)• Equitas Academy Trust fined £7500 plus £3000 COSTS HSAWA
74 S 3(1)
Why was the IOSH guidance developed?
• Produced by the PSG, principally by myself and Ruth Sleigh• Increased use of • Contractors• Partnerships• Voluntary, public and private sectors
• Experience indicates there were weaknesses in managing contractors
• Recognised the need to ensure H&S in embedded in the procurement process
• Need to ensure that H&S standards are maintained in contracted out services
• Need to ensure the health and safety of clients, service users , employees and members of the public who may be affected
What does the guidance do?• Seeks to assist those procuring and commissioning services in
the public sector• Principles read across all sectors• Deliberately simple and straight forward• Not designed to understood only by H&S professionals• Useful for everyone engaged in procurement• Can be used as a training tool to raise awareness of those on
the periphery of the process, e.g. elected members
What does the guidance contain?• Heart of the site is the checklist• Specify• Select• Monitor
• Further information to set the context• Sensible risk management• Law and procurement• Roles and responsibilities• Commissioning• Prequalification schemes
• Useful links• PDF of checklist
Lets look at the site!www.iosh.co.uk/groups/public_services_group/ps_procurement.aspx
What do we want the guidance to do?• Raise awareness of the importance of health and safety
performance as a contractor selection criterion• Get procurement officers and health and safety professional
engaged in the process• Improve health and safety performance of contractors• Ensure contracted out services are delivered safely• Prevent injury
To conclude• Contracting out is increasing across public and private sectors• Contractor selection and management is essential to delivery
of safe services• The guidance should assist in ensuring that those selected can
deliver safe services• We cannot emphasise enough the importance of effective
contractor/contract monitoring• Crucial that health and safety professionals, procurement and
monitoring officers work together to deliver safe contracted out services
Thank you for your kind attention, any questions or comments?