Posted By Mark Preston Have a look at this HSE press release http://www.hse.gov.uk/press/e00166.htm unfortunately the CRR to which it refers hasn't made it to the HSE site It seems to me that since the host organisation provides and is in control of the workstation, this is a case where the onus for assessment lies with the host - it would be absurd to leave it to the agency There was an article on this in issue 293 (nov 2000) of the IRS Health and Safety Bulletin - I have the text scanned if you don't subscribe

Posted By Ken Taylor I believe that your strict interpretation of the H&S (DSE) Regs is quite correct, Andy - as they place the duty upon employers and the agency is the employer. However, this is not a practicable proposition and, as the host organisation has duties as the occupier of the workplace under HASAWA, they should carry out risk assessments as required under HASAWA and the Management of HASAW Regs - which in practice would follow the HSE guidance to the DSE Regs. It would be interesting to discover whether the Agency as the employer can discharge their duty in this area by ensuring that the host organisation performs the DSE assessment - but I am unaware of any case law so far and it seems unlikely to arise.

Posted By Dave Daniel This is a very difficult area. You will find that some H&S Regs effectively place duties on the "responsible person" by adding "others" to the employer's duties, but of course no safety regs are written to a standard - some do and some still maintain a strict employer-employee relationship - PPE is one of the latter for example (from recollection. I did some work for an agency some time ago and found the agancy did'nt even have a clear policy on the status of these people. They first issued contracts saying they were the client's employees, and they just paid wages on the client's behalf, 9 months later they were issuing contracts to agency workers stating they were self employed, although the agency continued to deduct PAYE & NIC's from wages! The waters are further muddied by the Inland Revenue trying to class more self-employed people as employed, in some cases unsuccessfully. I guess this needs a good "no-win-no-fee" claim to set out clear case law. My own view was that any agency needs to enquire after the placement conditions of its worker to ensure that they are not implicated and set conditions on the placement accordingly, preferably monitoring that these are implemented. Agencies don't like this. They just want to shift bodies and anyway don't have the skills to ask the right questions etc. Hope this lengthy response helps Dave - H&S Consultant

Posted By Arran Linton - Smith This is a difficult question to answer and as I see it, the agency pays the National Insurance and tax and therefore is normally the employer, however they do not provide the workstation. The office in which the agency employee works would only need to undertake a workstation assessment under the Health and Safety (Display Screen Equipment) Regulations 1992 if the agency employee was a display screen ‘user’. The agency therefore has a duty to assess if their employee is likely to be a ‘user’. This is very difficult especially if the agency is too remote from the work which undertaken by their employee. The office anyway may not agree with the agencies assessment especially if the employee is a ‘user’. I believe that both Section 2 and section 3 duties under the Health and Safety at Work Act both apply in this case, however I would expect to see the agency include (general) risk assessments and arrangements for the safe use of VDU equipment in their General Safety Management System. I do believe that this answer is open to be challenged, because I believe this issue is still very controversial and subjective. This is a good study question for diploma students to look at.

Posted By Andy Lucas Andy, Temp agencies are tricky customers. For some time they have exploited a loophole in H&S legislation. A lot of companies provide staff by way of a contract of service and are not legally the employer. As such legally they are exempt from most H&S responsibilities. Problems arise when the host company is not aware of this believing the temp agency to be the employer. Part of the DTI licensing conditions of temp agencies is that they must make it clear who the employer is, this does not always happen and hence problems arise when accidents happen etc. Having said all of this, the Gov is looking to issue new legislation soon which should close the loophole, probably making temp agencies responsible. In any case the host company will always have a duty of care and there always should be liason between the two parties (Management Regs)to cooperate in H&S matters. Clearly this rarely happens. There have been an increasing number of prosecutions of temp agencies most notably in the nursing world. I think it is fair to say that this mess will shortly be cleared for the good of temps. Hope this helps Regards Andy

Posted By Nigel Lusby Mike, Broadly speaking, an Independent contractor is said to have a contract for his services with his employer, whilst an employee works under a contract of service. A contract of employment is a requirement of the Employment Rights Act 1996, such a contract would indicate that the person is an employee working under a contract of service...Sounds as clear as mud? I guess that’s why we need lawyers. Regards Nigel.