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#1 Posted : 23 May 2001 15:05:00(UTC)
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Posted By Andy Beveridge Can anyone point me towards info regarding the duties of temp agencies towards their temps? I am particularly interested in stuff like DSE assessments when a temp starts work in a new office etc. The way I understand it is that if the temp is employed by the agency and goes to an office to work, it is the duty of the agency to ensure the safety of the workstation; if the agency finds employment for a temp where she/he is actually employed by a company, it is down to that company to ensure the safety etc. Anyone had dealings with this sort of thing? All help/guidance/advice gratefully received. Kind regards Andy
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#2 Posted : 23 May 2001 16:30:00(UTC)
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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
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#3 Posted : 23 May 2001 17:19:00(UTC)
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Posted By Andy Beveridge Thanks Mark, I would be grateful to receive the scanned text. Many thanks Andy
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#4 Posted : 23 May 2001 19:09:00(UTC)
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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.
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#5 Posted : 23 May 2001 21:40:00(UTC)
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Posted By Rachelle Smith With points in mind as already stated, I am thinking about the recent judicial hardening towards the 'host' employer. Such as found in Microsoft, whilst this case surrounded employment law, the message is clear, in cases where the agency staff have become integral to the host employer - classify them as your own employees, up to a point. I think that this emerging legal principle makes for very good risk management practice and of course the end result of that is a profitable, sustainable business with less brand damage. Going back in time the R v Associated Octel case was a clear breach of 'host' responsibilities. Where the host had failed to communicate and provide safety equipment to his sub-contractor, was found to be liable when the explosion occurred. In other words, you hire them in, its your workplace, would you really hand on heart expect the agency to have the funding or expertise to conduct the assessments?
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#6 Posted : 24 May 2001 17:16:00(UTC)
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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
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#7 Posted : 30 May 2001 16:56:00(UTC)
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Posted By Robert Woods According to recent reports the Govenment is to place the responsibility for agency workers health and safety on the agencies. The employment agencies say this burden would make them uncompetitive. Your H&S policy should state how agency workers health safety and welfare are to be looked after whilst they are on your premises. There can't be rules for one set of workers and a different set for others. All to often agency workers are treated like poor relations in the workplace this has to stop.
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#8 Posted : 01 June 2001 17:25:00(UTC)
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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.
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#9 Posted : 01 June 2001 21:20:00(UTC)
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Posted By Stuart Nagle Alan. I agree with some of what you say. I would suggest that there are two distinct responsibilities here, each on behalf of an employer. a)At law, the agency as an employer of the temp to meet the requirements of the HSAWA 74 and the MHSAW Regs 92/99 and to liase with the employer where the temp is situated. b) The employer, where the temp is situated, to ensure the safety of all persons employed within his undertaking, as the temp surely is, whether an employee directly or not. The House of Lords descision in Regina - V - Associated Octel covered some of this ground, albeit in a different setting and following an incident, however it appears to me that the phrase 'within his undertaking' is quite clearly demonstrated by the fact that the temp is 'employed' within the host employers premises, and presumably undertaking work that is within the host employers undertaking. what do you think? regards... Stuart Nagle
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#10 Posted : 09 June 2001 09:40:00(UTC)
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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
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#11 Posted : 09 June 2001 10:09:00(UTC)
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Posted By Mike Charleston Hi Andy Could you or anyone else please outline the difference between a contract of service and a contract of employment?
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#12 Posted : 13 June 2001 22:23:00(UTC)
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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.
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