Back in the 1900’s before the Health & Safety at Work Act 1974 was a mere twinkle in the eye of the HSE’s first Director General, John Locke (74) window cleaning, just as all other trades, took great risks.
Residential window cleaning by large window cleaning companies were reserved mainly for the very rich and the commercial sector boomed. Around this time, as the population could buy more with their money, working class folk would begin to hire the local window cleaner in the street too.
Health & Safety issues were not all obsolete by the folk of the day either. The people in charge of governing municipal buildings, for example, on the surface seemed quite the opposite. However, I’m not sure if it was less about saving lives and more about workers compensation.
On one occasion in the early 1900’s the Salford Town Clerk (UK) was recorded to of objected to window cleaners, cleaning their school windows on the risk, which the policies were covered. Subsequently an interview with the Deputy Town Clerk and Borough Treasurer followed with the contract work being allowed to go ahead after reassurances.
I am not sure if you might of seen vintage pictures of commercial window cleaners from this time in history, but what I can tell you is that nerves of steel were defiantly needed as they scramble up 6 storeys on wooden ladders without any form of protection!
Window cleaners back then were paid 6d per hour and required to work 56 hours per week during the summer months and 52 hours per week the rest of the year.
(6d per hour pay = 2.5p or just shy of 3 US Cents) It was not unusual for labourers of the time to work a 10-hour day, 6 days per week!
Now imagine this next company in today’s H&S environment. In 1913 the Great International Window Cleaning Co. employed over 600 window cleaners, all of them working from ladders. All of them taking huge risks at huge heights. When you take into consideration workplace mortality statistics for the UK in 2015-16, for example, where 144 workplace deaths were recorded with established H&S regulations, 37 of them as a direct result of falls from height, you have to ask yourself how many of the 600 survived back in 1913?
Today it is virtually impossible for window cleaners choosing to use ladders on commercial buildings in the UK. The building owners/occupiers are more aware of the liabilities involved and they are more aware of the risks identified and alternative solutions AKA water fed pole window cleaning. Deaths and serious injuries are investigated by HSE and fines issued where applicable to both the window cleaning employer and their clients.
Not so in the residential market. Whereas window cleaners using water fed poles in this market are growing in numbers, there appears to be a hard core still determined to use ladders as their preferred use.
So where is the liability when it comes to residential window cleaning? And so then who is to blame when window cleaning on ladders goes horribly wrong?
Zip back to the Victorian era again and you can see a parallel attempt on addressing those very questions. What is the liability of householders to window cleaners?
A window cleaner in Birkenhead early 1900 (UK) sued his customer under the ‘Workmen’s Compensation Act’ for the loss of a limb.
The verdict rested with the householder. Reason being that the Judge in his decision stated that there were no test cases to help him decide the liability. He instead based his verdict on the facts that the plaintiff was not engaged by the defendant, and that there was no contract of service that may of existed.
Whoah!! Backup Chief. The home owner here is denying they have ever had any service agreement with this window cleaner. Sound familiar?
So, in this case ‘Hill V. Begg’ it failed as Hill (the window cleaner) had not proved a contract of service, but was also engaged casually. At the time there were reported another four cases determined in the same manner.
However, some success was achieved. In the case of Dewhurst V. Mather, it was held that employment on Friday every week and on Tuesday in alternative weeks is regular and not casual employment.
It would appear even in the 1900’s proof of service had to be provided and was central to any claim. So where does this leave window cleaners today? Do you have a service agreement? Could this determine liability should something go wrong?
Jeremy Vine spoke in his Telegraph column of the day his window cleaner nearly died in his garden cleaning his windows (http://www.telegraph.co.uk/comment/9466514/Jeremy-Vne.html)
In his column, Jeremy debates where the liability should lie. “Thank heavens he did not die” states JV. He goes on to write, “The man’s ladder had been resting on the bitumen surface of the kitchen roof. Heat had loosened the tar and the foot of the ladder suddenly slid from under him. A camera on the back of our house shows the ladder fall first, rapidly followed by the man, who travels at speed through the air, upside-down. Luckily his left leg gets caught around a rung of the ladder, which stops his head striking the concrete. He dangles like a broken puppet. So there were no police, no ambulances. But I turned it over in my head. If the poor man had died, I just know I would have been responsible. I would have been responsible because it was my window, my house and my melting roof.”
JV concludes, “The trouble is, no one likes to use the word “accident” now. As a result the avoidance of blame is a national sport. When I caught my five year-old eating chocolate from a cake I was baking after I had told her to stop, she came out with the classic line: “I’m sorry, dad, but it fell on me.”
Which is why I’m certain that, if my window cleaner had died, the police would have called, and even though I’d never met him or told him where to put his ladder, it would have been all my fault”.
Now understandably so, window cleaners that have gone to the expense of safer window cleaning equipment and methods, buying water filtration systems, expensive telescopic poles and accessories, they may be slightly ‘miffed’ that window cleaners still operate on ladders, therefore unsafe in their eyes.
So how do you stand on this? Well first off all stating on your website that householders should be aware of liability issues if a window cleaner has a fall from his ladder and that choosing window cleaners that work safely with telescopic poles is the way to go can be seen by HSE or Trading Standards as ‘scaremongering’. Ironic I know.
In fact one window cleaner’s flyer went as far as saying ‘Householder fined £17K for window cleaner falling off his ladder’ with no real basis. A quick search in Google of that story or any like it brings up nothing. Rumors bound it was something to do with a civil case.
It appears to be a definite uncertain area with legal claims relating to residential window cleaning but when it comes to civil cases it usually is.
On the face of it, H&S and liability is on the business owner or employer. In residential window cleaning too many self employed think that H&S regs do not affect them and their customers also enjoy the exemption of no direct liabilities unless the property is defective. Mmmm, toxic combination maybe?
One Admin post in an IOSH forum answered it beautifully to the question of, ‘Are homeowners liable for accidents from ladders?’, “I would think not. HASAW doesn’t apply to homeowners. It’s the responsibility of the window cleaner to ensure that he is working safely.
Certainly no home insurance would pay out on this and you cant expect all homeowners to have public liability insurance, nor could you expect “old Ethel at number 10” to effectively control any service providers. We expect these folks to be competent and be able to look after themselves”. You see this is where HSE and Legislation come into play and this would only be lobbied by the industry as a whole, something I feel will happen.
So then does this bounce back to regulation only? Is regulation the only thing that will assist self employed window cleaners to move to a safer method of window cleaning other than on ladders? I think so.
Well there is regulation for self employed residential window cleaners as we speak but more needs to be done. In terms of the Health and Safety at Work, Act 1974, employers are required to ensure, so far as reasonably practicable, the health and safety and welfare of their employees and to ensure that those affected by their activities are not exposed to risk. But it was also updated by saying, ‘The law: Work at Height Regulations 2005 (as amended) place duties on employers, the self-employed, and any person that controls the work of others (for example facilities managers or building owners who may contract others to work at height).
So can you sue the homeowner? Well it appears window cleaners cannot sue the homeowner but may be able to sue for defective premises. May be the window cleaner was holding on to an open window frame. The window slammed shut because the hinge was defective on his fingers and because of that he fell from the ladder and injured himself. Think Jeremy Vines flat roof story.
One Safety Director writes, “In my opinion, and it is only that, a householder is unlikely to be held liable for injury to a window cleaner working on his property. A private individual in this situation it is my belief, has no liability under statute law. However, all people owe a duty of care to one another, under civil law. But is a duty owed? I don’t think so, although there are situations where perhaps a degree of culpability could be claimed, where perhaps the window being asked to be cleaned gives way because it is not maintained in good condition”.