Posted By Alan Murphy I am just wondering because i am compiling a report. If we say a company has 50 people delivering goods for them on lorries or vans. 5 of them are employed by you, obviousy i know where thier liability lays, but what about the other 45 if they are sub-contracted by you. What are we responsible for for them. For instance if they are delivering goods heavier than guidance say 30-80kg as a single driver, where does the liability lay. Any help on this matter or ideas of case law would be helpful.

Posted By Adrian Watson Dear Alan, Under S3 of the health and Safety etc at Work Act 1974, you have responsibility for ensuring, so far as reasonably practical, the Health and Safety of persons affected by your undertaking. You also have a duty under S6 to provide information. In respects of any specific duties imposed by any regulations, that depends on which regulations apply. In this case whilst the manual handling operations regulations 1992 impose duties on employers, they do not impose any specific duties upon you. However, if your contractors are requiring single drivers to your deliver goods, 30-80kg in weight, you could be liable under S3 and S6 if you did not take any reasonably practical steps to: - Provide appropriate information to the contractor; - Package goods in smaller weights if this is possible; - Mark goods appropriately; and - Require that the contractor comply with the manual handling operations regulations 1992. However, you would not be expected to enforce the regulations or provide any tools or equipment. Regards Adrian Watson

Posted By David P. Johnson Just because they are called Sub Contractors, they may not be in terms of law. Ferguson vs. Dawson and Partners (1976) sets precedence that if an employer and employee relationship applies between the parties they are an employee for the purposes of HASAWA. For example, if they are under your direct management, working at times you specify, they could be considered employees. Obviously this is not an absolute qualification of the precedence. If you care to contact me directly I would be happy to try and assist you with this. DJ

Posted By Adrian Watson ‘Employee’ means an individual who works under a contract of employment or is treated by the Health and Safety at Work etc Act 1974 s 51A (as added) as being an employee, and related expressions are to be construed accordingly. Melhuish v. Redbridge Citizens Advice Bureau [2004] UKEAT 0130_04_2405 (24 May 2004) provides guidance on the meaning of employee. In para 21 it states "There are the four indicia of a contract of service, first mentioned in Park v Wilson's and Clyde Coal Company Ltd and repeated by Lord Thankerton in Short and J W Henderson Ltd." The latter is a House of Lords decision, reported in 1946 62 TLR 427 at 429. MacKenna J. then set out those four indicia: - "a) The Master's power of selection of his servant b) The payment of wages or other remuneration c) The Master's right to control the method of doing the work d) The Master's right of suspension or dismissal." "14. Those passages in MacKenna J's judgment have of course been cited time and again. But particularly significant is their citation in the Court of Appeal in Nethermere (St Neots) Ltd v Gardiner [1984] I.C.R. 612 at 623 in the judgment of Stephenson L.J., in which the learned judge referred to the passage I have cited above from MacKenna J. in Ready Mixed Concrete at 515 …… And then he cites the central passage: - "There must be a wage or other remuneration otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill." And then Lord Justice Stephenson said:- "There must, in my judgment be an irreducible minimum of obligation on each side to create a contract of service, I doubt if it can be reduced any lower than in the sentences I have just quoted." Therefore if you do not pay the sub-contractor a wage; cannot determine who the sub-contractors uses to do the work; or how the sub-contractor does the work; or if you cannot suspend or dismiss the subcontractor, they are not to be working under a contract of service; i.e. they are not employed, in which case S3, instead of S2 of the HSWA 1974 applies. Regards Adrian Watson

Posted By Alan Murphy These answers have been a great help, and pretty much on my way of seeing things. But it certainly clears most stuff up thanks again. Alan