Why Claimants Sue the Main Contractor: Subcontractor Risk, Liability and Worker Status
- William Slivinsky
- 4 days ago
- 6 min read
If your business uses subcontractors, you may assume that any problem caused by the subcontractor is the subcontractor’s responsibility. In practice, that assumption can be dangerous. A claimant may choose to sue the main contractor, principal contractor or business that arranged the work, especially where that business had control, insurance, financial substance or a visible relationship with the customer.
This is why I advise business owners on employment-status and worker-status arrangements before problems arise. The risk is not limited to whether someone is called self-employed, a subcontractor or an independent contractor. The real question is whether your business has built a genuinely independent subcontractor relationship in practice.
I have explained in more detail why a subcontracting agreement must match the reality of the working relationship. Proper drafting is important, but drafting alone is not enough. If the agreement says the subcontractor is independent, but your business controls the work like an employee relationship, the document may not protect you in the way you expect.
This point is also supported by one of the case in which I represented the claimant and established limb (b) worker status. There was no written contract setting out the full relationship, but the Employment Tribunal still examined how the work operated in reality. That case is a useful reminder for businesses: whether there is a written contract or not, reality remains key.
Why Claimants Sue the Main Contractor ?
In tort claims, a claimant usually looks for the party most likely to provide a practical remedy.
That may be the main contractor or business because it may have:
better insurance;
more financial substance;
control over the site or work;
responsibility for the customer relationship;
responsibility for selecting the subcontractor;
responsibility for safety systems;
documents, records and risk assessments;
a visible role in how the work was arranged.
A subcontractor may be a sole trader, may have limited assets, may not have proper insurance, or may be difficult to pursue. The main contractor is often easier to identify and more likely to satisfy a claim.
This does not mean that a business is automatically liable for everything a subcontractor does. But it does mean that claimants often look closely at the business that arranged, controlled or benefited from the work.
The two key questions for business owners
When I advise businesses that use subcontractors, I usually focus on two connected questions.
First: is the subcontracting agreement properly drafted?
Second: does the actual working relationship support genuine subcontractor independence?
Both are important.
A strong subcontracting agreement can help define the relationship, allocate risk, deal with insurance, protect the business and explain who is responsible for what. But if the day-to-day relationship contradicts the agreement, the business may still face problems.
For example, if the agreement says the subcontractor controls their own work, but in practice your business gives daily instructions, controls the method of work, prevents substitution and manages the customer relationship, the written wording may be undermined.
Proper drafting matters
A subcontracting agreement should not be treated as a standard template that is signed and forgotten.
It should be tailored to the real commercial arrangement.
A good subcontracting agreement should usually deal with:
the scope of work;
payment terms;
deadlines and standards;
who provides tools, vehicles, equipment or materials;
insurance requirements;
liability and indemnity;
health and safety responsibilities;
confidentiality;
data protection, where relevant;
whether the subcontractor can work for others;
whether substitution is genuinely allowed;
termination;
complaints and defects;
responsibility for tax and business expenses.
The agreement should also be realistic. There is no point inserting clauses about independence, substitution or business risk if your business will not allow those things in practice.
The contract should describe the real relationship, not an artificial version of it.
The relationship matters even more
The second part is how your business actually operates with subcontractors.
A genuinely independent subcontractor relationship is usually easier to support where the subcontractor has real business independence.
For example:
the subcontractor can control how the work is done;
the subcontractor can work for other clients;
the subcontractor carries some business risk;
the subcontractor provides their own tools or equipment where appropriate;
the subcontractor has their own insurance;
the subcontractor can price or negotiate work;
the subcontractor can use a genuine substitute where appropriate;
the subcontractor is not managed like staff;
the subcontractor is not fully integrated into the business.
The more your business controls the person, the more the relationship may look like worker status or employment-style dependency.
Control creates risk
Control is often the central problem.
Your business may need to control quality, safety and customer standards. That is normal. But there is a difference between setting commercial standards and controlling someone like a member of staff.
Risk increases where your business:
gives daily instructions;
controls the method of work;
controls working hours;
requires personal attendance;
refuses genuine substitution;
provides all equipment;
requires branded clothing or vehicles;
prevents the subcontractor from working elsewhere;
disciplines the subcontractor like staff;
presents the subcontractor to customers as part of the team.
If those features exist, the business should not assume that the word “subcontractor” will solve the problem.
The legal and practical reality may point in a different direction.
Why this matters in tort liability
In tort, a claimant may argue that the main contractor or business should be liable because it created or controlled the risk.
For example, the claimant may argue that the business:
selected an unsuitable subcontractor;
failed to check competence;
failed to check insurance;
failed to provide safe instructions;
failed to supervise dangerous work;
controlled the site or system of work;
supplied defective equipment;
created the risk through its own business operation.
This is different from saying that the business is automatically liable for the subcontractor. The claimant may instead say that the business owed its own duty of care and breached it.
That is why subcontractor risk is not only about employment law. It is also about negligence, insurance, health and safety, customer risk and business reputation.
Employment-status risk and liability risk can pull together
Employment-status risk and tort liability risk are different legal issues, but they often rely on similar facts.
If the business controls the subcontractor closely, integrates them into the business and prevents genuine independence, that may support an employment-status argument.
The same facts may also support an argument that the business created or controlled the risk for liability purposes.
This is why I advise businesses to look at the whole relationship, not only the wording of the agreement.
The safest structure is where the contract, insurance, working practices and commercial reality all point in the same direction.
Practical example
A business uses a subcontractor to carry out work for customers. The agreement says the subcontractor is independent.
But in practice, the business books the work, sets the price, gives daily instructions, controls the timetable, provides equipment, manages customer complaints and does not allow the subcontractor to send anyone else.
If something goes wrong, the business may face two problems.
First, the subcontractor may later argue that they were not genuinely independent and bring an employment-status or worker-status claim.
Second, if a customer or third party suffers loss or injury, the claimant may argue that the business controlled the work and should bear responsibility.
The same factual problem creates both types of risk.
What businesses should do
If your business uses subcontractors, you should not rely only on labels.
You should review:
whether the subcontracting agreement is properly drafted;
whether the agreement matches the real working relationship;
whether substitution is genuine;
whether the subcontractor has real independence;
whether the subcontractor has proper insurance;
whether your own insurance covers the arrangement;
who controls the work;
who manages the customer relationship;
who carries the risk if something goes wrong;
whether the subcontractor is becoming integrated into the business.
This review should happen before a dispute, accident or claim arises.
Once a problem has already happened, the evidence may be harder to manage.
Conclusion
A subcontracting agreement is important, but it is only part of the protection.
For business owners, the real protection comes from two things working together.
First, proper drafting.
Second, a working relationship that supports genuine subcontractor independence.
If the document says one thing but the business operates in another way, the business may face employment-status disputes, negligence claims, insurance problems and wider commercial risk.
The safest approach is to build the subcontractor relationship properly from the start. The contract, insurance, working practices, customer arrangements and day-to-day management should all support the same legal position.
That is how a business reduces risk before a claimant, subcontractor or tribunal starts examining the relationship after something has gone wrong.
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