Many articles have been written about the duties and potential liabilities of all those involved in construction projects, but very little has been written about the duties of the in-house professional. That of course does not mean that no such duties are owed.

The common law recognises that there is implied into any contract of service a promise on the part of the employee (a) that he is reasonably competent to fulfil the role to which he is appointed and (b) that he will exercise reasonable skill, care and diligence in the performance of his duties.

For all practical purposes, it is immaterial whether the employee is engaged in skilled or unskilled labour but the observations of Willes J in Harmer –v- Cornelius are particularly relevant:-

"When a skilled labourer, artisan, or artist is employed, there is on his part an implied warranty that he is of the skill reasonably competent to the task he undertakes, spondes peritiam artis. Thus, if an apothecary, a watchmaker or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts … An express promise or express representation in this particular case is not necessary."

Want of competence and/or a failure to act competently will expose an employee to liability for breach of his contract of employment. He will also incur liability in tort if negligence or deliberate failure to exercise reasonable skill in the performance of his duties results in loss or injury, whether to his employer or a third party. Even if such liability will usually be covered by an employer’s insurance policy that, of itself, will not absolve the employee of liability.

The required level of competence is not to be judged by reference to some unreasonable abstract standard but in the light of the knowledge and expectation of the parties to the employment contract. In any given case, just what the required standard may be and whether the employee’s performance has fallen short of this standard will depend entirely on the circumstances and the context in which these issues fall to be addressed. In civil actions for negligence or breach of contract of employment or in unfair dismissal proceedings, for example, it may be necessary to pray in aid a variety of sources ranging from express contractual provision to job descriptions, Codes of Practice, protocols, British or other industrial standards, legislative requirements and expert opinion to establish whether there has been a "want of due care" or that the employee is simply not up to the job.

In the context of internal disciplinary/capability proceedings or of assessing the fairness of dismissal for incompetence, the employer need only have an honest and reasonable belief in the employee’s shortcomings. So long as there are reasonable grounds for that belief an employment tribunal is not going to challenge the employer’s findings although questions may still be asked as to the reasonableness and propriety of any sanction imposed by the employer.

It is certainly the case that an employer’s professional staff may be expected to possess and to exercise the skill and experience necessary to undertake to a reasonable standard the responsibilities they have agreed to discharge. Condition 10 (1) of the General Conditions for the Appointment of Consultants - GC/WORKS/5 (1998) - offers a succinct exposition of an external Consultant’s contractual duty of care in terms that would be implied into the service contracts of in-house professional staff:-

"The Consultant shall perform the Services in accordance with all Statutory requirements and with the reasonable skill, care and diligence of a properly qualified and competent consultant experienced in performing such Services on projects of similar size, scope, time scale and complexity as the Project."

The Codes of Professional Conduct of professional institutions such as the RICS and RIBA will also have a bearing on the quality and levels of service reasonably to be expected of employees. They set general standards of behaviour and are intended to regulate the relationship between members, their professional organisation and their clientele.

In discharging their duties in-house staff must demonstrate the same level of care and competence that is reasonably to be expected of all those practising in their chosen disciplines. In that respect their position is no different to that of the qualified external consultant. The standard of care is constant though its demands will vary according to the nature and circumstances of any given task in which they are involved.

Breach of this duty of care – falling below the requisite standard – may expose in-house construction professionals to:-

  • tortious liability to third parties and both tortious and contractual liability to their employer for any damage attributable to their breach of duty.
  • internal disciplinary and/or capability proceedings that could jeopardise their livelihoods
  • disciplinary action by the relevant professional and/or regulatory bodies

Breach could also give rise in certain circumstances to criminal liability, e.g. under Health & Safety legislation.

In light of the case of Harmer –v- Cornelius, if someone applies for a position as an in-house construction professional, they are offered the job and then accept it, it is then the case that they have warranted to their employer that they have the necessary skills to carry out that job.

If an employee omits to do something which is patently necessary in order for the work properly to be done, the employer can rely by way of benchmark on the standard sets of duties which apply to the profession which the particular individual practises, e.g. architecture, engineering, etc. What the particular employee has done, or has omitted to do, will be judged by the standard of the "reasonably competent" professional. Part of the test will be looking at whether or not there was a "norm" to be followed, in particular whether or not the work to be carried out was what one might expect as normal work, within the usual range of reasonable competence, or whether it was something exceptional.

Accordingly, the in-house employee will be measured by what is normally expected of a reasonably skilled worker in the circumstances in which that employee operates.

What are the Duties and Liabilities of In-House Construction Professionals?

Many articles have been written about the duties and potential liabilities of all those involved in construction projects, but very little has been written about the duties of the in-house professional. That of course does not mean that no such duties are owed.

The common law recognises that there is implied into any contract of service a promise on the part of the employee (a) that he is reasonably competent to fulfil the role to which he is appointed and (b) that he will exercise reasonable skill, care and diligence in the performance of his duties.

For all practical purposes, it is immaterial whether the employee is engaged in skilled or unskilled labour but the observations of Willes J in Harmer –v- Cornelius are particularly relevant:-

"When a skilled labourer, artisan, or artist is employed, there is on his part an implied warranty that he is of the skill reasonably competent to the task he undertakes, spondes peritiam artis. Thus, if an apothecary, a watchmaker or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts … An express promise or express representation in this particular case is not necessary."

Want of competence and/or a failure to act competently will expose an employee to liability for breach of his contract of employment. He will also incur liability in tort if negligence or deliberate failure to exercise reasonable skill in the performance of his duties results in loss or injury, whether to his employer or a third party. Even if such liability will usually be covered by an employer’s insurance policy that, of itself, will not absolve the employee of liability.

The required level of competence is not to be judged by reference to some unreasonable abstract standard but in the light of the knowledge and expectation of the parties to the employment contract. In any given case, just what the required standard may be and whether the employee’s performance has fallen short of this standard will depend entirely on the circumstances and the context in which these issues fall to be addressed. In civil actions for negligence or breach of contract of employment or in unfair dismissal proceedings, for example, it may be necessary to pray in aid a variety of sources ranging from express contractual provision to job descriptions, Codes of Practice, protocols, British or other industrial standards, legislative requirements and expert opinion to establish whether there has been a "want of due care" or that the employee is simply not up to the job.

In the context of internal disciplinary/capability proceedings or of assessing the fairness of dismissal for incompetence, the employer need only have an honest and reasonable belief in the employee’s shortcomings. So long as there are reasonable grounds for that belief an employment tribunal is not going to challenge the employer’s findings although questions may still be asked as to the reasonableness and propriety of any sanction imposed by the employer.

It is certainly the case that an employer’s professional staff may be expected to possess and to exercise the skill and experience necessary to undertake to a reasonable standard the responsibilities they have agreed to discharge. Condition 10 (1) of the General Conditions for the Appointment of Consultants - GC/WORKS/5 (1998) - offers a succinct exposition of an external Consultant’s contractual duty of care in terms that would be implied into the service contracts of in-house professional staff:-

"The Consultant shall perform the Services in accordance with all Statutory requirements and with the reasonable skill, care and diligence of a properly qualified and competent consultant experienced in performing such Services on projects of similar size, scope, time scale and complexity as the Project."

The Codes of Professional Conduct of professional institutions such as the RICS and RIBA will also have a bearing on the quality and levels of service reasonably to be expected of employees. They set general standards of behaviour and are intended to regulate the relationship between members, their professional organisation and their clientele.

In discharging their duties in-house staff must demonstrate the same level of care and competence that is reasonably to be expected of all those practising in their chosen disciplines. In that respect their position is no different to that of the qualified external consultant. The standard of care is constant though its demands will vary according to the nature and circumstances of any given task in which they are involved.

Breach of this duty of care – falling below the requisite standard – may expose in-house construction professionals to:-

  • tortious liability to third parties and both tortious and contractual liability to their employer for any damage attributable to their breach of duty.
  • internal disciplinary and/or capability proceedings that could jeopardise their livelihoods
  • disciplinary action by the relevant professional and/or regulatory bodies

Breach could also give rise in certain circumstances to criminal liability, e.g. under Health & Safety legislation.

In light of the case of Harmer –v- Cornelius, if someone applies for a position as an in-house construction professional, they are offered the job and then accept it, it is then the case that they have warranted to their employer that they have the necessary skills to carry out that job.

If an employee omits to do something which is patently necessary in order for the work properly to be done, the employer can rely by way of benchmark on the standard sets of duties which apply to the profession which the particular individual practises, e.g. architecture, engineering, etc. What the particular employee has done, or has omitted to do, will be judged by the standard of the "reasonably competent" professional. Part of the test will be looking at whether or not there was a "norm" to be followed, in particular whether or not the work to be carried out was what one might expect as normal work, within the usual range of reasonable competence, or whether it was something exceptional.

Accordingly, the in-house employee will be measured by what is normally expected of a reasonably skilled worker in the circumstances in which that employee operates.

For further articles by Victoria Russell please visit www.fenwickelliott.co.uk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.