Posted By Richard Webber
John,

I have heard of these arguments between Agencies and Contractors. Each feels that the other is the real employer, but only one is right. The contractor may think that as wages are paid by the Agency then the Agency must obviously be the employer.

The answer is that the "Responsible Person" referred to in RIDDOR is the person for the time being in control of the premises where the accident occurs. In this case the Contractor.

The Contractor employs the agency worker in the sense that he chooses, assesses, monitors and supervises all work done by that worker. He is therefor the employer referred to in the HASAWA.

Try showing the contractor the relevant bits of RIDDOR.

As for the vunerable workforce did the accident go into the accident book or are they arguing about that as well?

Richard

Posted By Lynchy


John

If I were you I would advise the person who is in control of the site to report the incident - in my opinion if there are questions later on, he will be the person that the HSE will expect to have "taken control" - not necessarily the actual employer!

So far as I am aware the actual employer must notify & report (did anyone notify, prior to the F2508 written report)? if the incident is at the employers place of work / the employers premises - but if it occurs away from the emoloyers premises ie on another contractor's site, then the "person in control of the premises" has the duty to report!


If the 2 parties allow this accident to go unreported then they will be exposed to possible prosecution - and possibly allegations of collusion in not reporting, because for sure the one question that WILL be asked is "Why were you reluctant to report"? Was this an attempt to cover up?

Further, if you are advising them, I would advise you to put it in writing to them in very clear terms just to make sure that it doesn't look later on as if you had any part in the non - reporting!!

Lynchy

Posted By Eric Burt
I too have investigated a serious accident involving an Agency worker which ended up with a prosecution of the employer (and no action taken against the Agency). The employer was prosecuted under section 2 HASAWA for lack of training and supervision.

There is still much confusion surrounding the status of Agency workers, so clearly there is an urgent need for the HSE to issue an Approved Code of Practice to spell out in detail exactly what the employer's (and the Agency's) responsibilities are.

Until this is done, I suspect that many more Agency workers will continue to be put at risk by employers who see them as second-rate employees and treat them this way.

I have raised this issue locally with HSE but I think it will take either a tragedy (such as at Morecombe Bay) or some big-time lobbying to get some action.

I must also declare an interest in this issue as I have chosen this topic for my MSc thesis.

Regards,


Eric

Posted By Heather Aston
We too have had the "whose responsibility is it?" discussion.

We have been sued by one agency worker - note she did not sue the agency as we were the ones considered responsible for her accident. I accept that this is fair.

We regularly employ factory workers from another agency. We set certain pre-employment parameters for these workers and require the agency to provide them with certain safety equipment. We are then responsible for their training and supervision.

If one of them had a reportable accident, we would immediately notify the agency (their employer), would carry out our own investigation and would give a copy to the agency as well as providing them with the opportunity to do their own investigation. We would then expect them to report the accident to the HSE and would remind them of their responsibility to do so. In the unlikely event that they refused, we would do so ourselves simply to ensure that the accident was in fact reported.

I have found that working with the agency and setting out clear division of responsibility at the outset has avoided any issues.

Heather

Posted By Richard Pigg
"An Agency makes its money from the worker, would it be reasonable to expect that the Agency themselves employ competant people to RA the environment and consult over the H+S issues they are suppling people for?"

Not workable I am afraid John, for many temporary placments in the Construction and Manufacturing industries are only for a day of 2 and the agency only makes around £10-£15 per day by the time you take off their NI contributions.

If they were forced to RA every site they had operatives agencies would either have to up their rates to silly levels or cease operating in many low skilled sectors having a massively detrimental effect on workforce mobility.


Richard Pigg

Options Employment - Health & Safety Division

Posted By Steve Langston
Agency workers are quite often NOT employed by the agency. They very often have a contract with the agency to say they are self employed! as such the worker themselves should report it under RIDDOR. However this will not and does not happen. It is reasonable to expect the "site operator" (who controlls the hourly work load)should report it to the enforcing authority.

Following an accident at a local carpenters where an agency worker fell from a stack of pallets the HSE only became aware when the injured person complained direct to them of a number of unsafe practices at the site. The HSE investigated and served two improvement notices and prosecuted them for not reporting the incident under RIDDOR.

Unfortunately i do not know whether they were prosecuted for "not reporting an injury to a non employee" or "employee".

In short try these very simplistic formula's

Was the agency classed as an employee of the site operator... NO
Did the accident occur because of the undertaking? ......YES
Was this non employee taken direct to hospital.....YES? this is reportable by the site operator

Try it another way

Was the agency classed as an employee of the site operator... YES?
Was it a major injury?....YES this is reportable by the site operator.

Hope this helps

Steve