Posted By RP I would advise that you check with your insurers on this one. They would be interested and give you the appropriate advice. I do chainsaw work for the local football club in keeping the trees around the pitch in check. I am trained and quailified to do this and apply the NPTC principles to safe work. The insurance company are happy to class this work as maintenance and charge no more for it. Question is, does it come under HASAWA or not. Me thinks not. You could also ring HSE and ask.

Posted By Michael Hayward HASWA defines and Employee as "an individual who works under a contract of employment." I suggest that as a member of the club you owe them a section 3 responsibility. You should still however ensure that you have safe systems and procedures in place for any activity undertaken Cheers Mick

Posted By Aidan Toner Maybe try; Health and Safety Handbook for Voluntary And Community Organisations ISBN 903991013-Not exactly your situation I appreciate, BUT the Introduction section gives a sound overview of 'Organisations with Volunteers Only' and 'When Is a Volunteer not a Volunteer' Good Luck

Posted By garyh Thanks for the replies however were getting off track a bit here - my fault as I worded the subject heading misleadingly. My primary concern is how Committee members stand in terms of liability in the event of an accident to a member on a club organised activity, and can we rely on the "profesional" club member to take responsibility for himself. (To recap the specific concern is over a club member using his own chainsaw voluntarily).

Posted By Mark Talbot Yes, Brian and Adrian are right. Once someone is paid a salary the organisation becomes an employer and effectively accepts the HSAWA74 and all its glory (dim memory of who pays the National Insurance being the test). Paying for services (such as an accountant to do the sums once a year) does not constitute a salary. So, the Committee would be responsible in Civil Law but not Criminal Law, and as you make it compulsory that they take part in a work party, you may be exposed at a slightly higher level in a judge's eye. Sadly I think you will find that insurance covering "fishing" might not cover forestry or maintenance, but you might catch them on a generous day ;-)

Posted By John Caboche I would take issue with Mark, Brian and Adrian's opinion that HASAW 74 does not apply. It does. What defines employment in law is the "master - servant" relationship rather than payment of either wages or NI contributions. HASAW applies to volunteers in charity shops, who receive no wages nor pay NI contributions. Clubs, charities etc. do come under the HASAW, I belong to a nationally known re enactment society, which is a registered charity. The HSE are our enforcing authority (and have actually published guidence on the use of black powder at battle re enactments strangely enough....). I would refer you to the following case on the HSE prosecutions database for confirmation of this: http://www.hse-databases....asp?SF=CN&SV=F050000097 The St John Ambulance were succesfully prosecuted for the actions of one of their unwaged volunteers. I believe the case was also covered in SHP last year if I recall correctly. John

Posted By John Caboche Brian, to the best of my knowlegde there are no paid employees in the society at all. It is a limited company, and has a board of directors, however no one recieves any payment at all except for legitimate expenses such as travel. If I recall correctly the organising comittee of a sports club has the same responsibilites as a BOD. I did some consultancy work with a local yacht club in my home town a couple of years ago and an acqaintence who is a HSE inspector confirmed that they would be classed as an employer under HASAW. I checked with the HSE as I wanted to get my facts right before giving the club advice. I admit that in many instances this is a grey area, but in event of a serious mishap I'm sure the HSE would investigate and bring a prosecution as they did in the case of St John Ambulance. And I accept that the St John may well have some paid employees rather than just voluntary staff. The only case law that leaps to mind in this instance is Coggins and Griffiths vs Mersey harbour Board, (I know it's a civil case)but my memory is a little shaky on that particular case, my recollection is that that case is about defining WHO is the employer rather than determining employed status. I will happily stand corrected if that is not the case, and would be interested in knowing if there is any other case law you know of associated with this area of law. Intersting debate.

Posted By Brian Hagyard John. I think you have answered my question, The society is a Limited Company and therefore by definition a work activity. I doubt the fishing club is and certainly the Diving club I was a member of was not. Bob – again I would not argue with club rules but for civil cases, for HASWA to apply you have to have a work activity. As for what you tell the coroner, sadly the diving club I was a member of had a fatality before I joined and after I had left (long after thank goodness and no one I trained involved). In both cases the coroner decided accidental death and the HSE and LA’s involved (one death at sea one in an inland lake) took no action as no work activity involved. Brian CMIOSH.

Posted By Adrian Watson Dear Gary, The fact that someone is paid does not make them an employee; I pay a butcher for meat and the post office to deliver a letter, but in neither case would they considered to be my employee. For a person to be considered an employee there must be a contract of employment. Whilst the courts have exercised a degree of latitude in determining who is an employee, they have always said there must be a contract of employment. Regards Adrian Watson

Posted By Adrian Watson Dear Gary, Yes, a contract of employment is absolutely necessary for you to be employed! However, whilst many people don't have a written contract of employment, they still have a contract albeit that it is verbal. Regards Adrian Watson

Posted By Adrian Watson Gary, Yes. However if the person uses their own tools or can decide how and when the work is done, then it is more likely that it is a contract for services rather than a contract of employment. Furthermore, if the person can get substitute another person to do the work, then it is almost certainly a contract for services and not a contract of employment. Regards Adrian

Posted By Tony Brunskill Adrian, I would advise you look at the newer view of the definition "Worker" and "volunteer". Probably best defined under the Sex Discrimination Act. It is worth noting that for a master servant relationship to be in place it is not necessary for the benefits that flow to the volunteer to be in cash, it may be indemnity for liability, services, trainng etc although these would not hold alone and there would be a test of mutuality of obligation. and The ‘modern’ test for employment status was set out in the 1968 case Ready Mixed Concrete v Minister of Pensions. In that case it was held that: a contract of service exists if three conditions are fulfilled the servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master the other provisions of the contract are consistent with its being a contract of service However, A member of the public is not an employee and if injured as a result of the "undertakings" of the club the Act would apply. Person affected by the undertaking. This could include the volunteer himself. I think this club is on dodgy grounds maintenance. Not to mention the OLA which gives rise to strict liability in certain circumstances. (Can be argued its a civil liability) A final point is that while you may not have to write down your risk assessment this does not mean you do not have to do one!!

Posted By Adrian Watson Tony, S52 of the HSWA 74 states: (1) For the purposes of this Part— (a) “work” means work as an employee or as a self-employed person; (b) an employee is at work throughout the time when he is in the course of his employment, but not otherwise; S53 of the HSWA 74 states: “contract of employment” means a contract of employment or apprenticeship (whether express or implied and, if express, whether oral or in writing); Whether a person is or is not an employee is a question of fact. I suggest you read Melhuish v Redbridge Citizens Advice Bureau [2005] IRLR 419 This can be found at: http://www.bailii.org/cg...dvice+Bureau+&method=all In this case an unpaid voluntary worker at CAB, receiving reimbursement of expenses and free training, claimed unfair dismissal. It was held that there was no mutuality, no contract of employment and no contract at all except to reimburse expenses if incurred: Prior v Millwall Lionesses FC EAT 341/99 and South East Sheffield CAB v Grayson [2004] IRLR 35 applied. In BRUCE v DIAL HOUSE CHESTER (A REGISTERED CHARITY) [2004] UKEAT 0555_04_1309 it was held that volunteer workers for a charity are not engaged under a contract. East Sheffield CAB v Grayson and other EAT judgments to the same effect applied. For a contract of service to exist there must be an irreducible minimum obligation; 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. Furthermore if there are no employees these is no work, and if there is no work the HSWA 74 does not apply so your statement "A member of the public ... if injured as a result of the "undertakings" of the club the Act would apply." is wrong as is your comment "... while you may not have to write down your risk assessment this does not mean you do not have to do one!" because you don't have to do one! Whilst the club has a common law duty of care towards its "neighbours" the Occupiers Liability Acts gives rise to strict liability in respect of the state of its property, but not to activities on those properties. See Fairchild V Glenhaven Regards Adrian

Posted By Tony Brunskill Adrian, I agree that there is a question over the issue of whether the club "employs" these people. I thought I had been clear about the issue of "Mutuality" but obviously not clear enough. There is insufficient detail here to decide. However with regard to risk assessment if your argument is based on the decision that there is no employment then, fine. However if, given all of the circumstances, there is employment then my argument stands. MHSWR state: Risk assessment 3. - (1) Every employer shall make a suitable and sufficient assessment of - (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, 2) Every self-employed person shall make a suitable and sufficient assessment of - (a) the risks to his own health and safety to which he is exposed whilst he is at work; and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, Further qualified by: (6) Where the employer employs five or more employees, he shall record - (a) the significant findings of the assessment; and (b) any group of his employees identified by it as being especially at risk. It does not say if hwe employs less than 5 he does not have to do a risk assessment. Just one other point. Is the club a charity? Tony

Posted By Adrian Watson Tony, An Unincorporated Association is an association or a body of persons that is not a corporation. An example is a sports or social club where the members contribute funds out of which the club expenses are paid. An unincorporated association has no legal personality at common law and therefore could not incur criminal liability, though its individual members could. Unincorporated bodies may be employers, and as such would be liable for offences that use the definition 'employer'. I agree that if there there are employees, then the club is an employer and the HSWA 74 applies to its work activities. However, because a club pays for services such as a cleaner or accountant does not mean it has employees. Whilst I agree that consideration does not have to be in cash, an indemnity for liability, services, training etc are unlikely to be held to be consideration. In fact expenses and training have been held not to be valid consideration in contracts of employment. Furthermore, in respects of a club, I can get up and leave; therefore there is no mutality of mutality of obligation and no contract of employment. The cases quoted above clearly indicate the test for employment and are recommended reading. Regards Adrian

Posted By Tony Brunskill Adrian, So to summarise what I said - If the club are employers the Act and regulations apply. Including S3 - Persons affected by their undertaking. If they are employers then there is a need to undertake a risk assessment, not necessarily record it. The assertion that if they employ less than 5 they do not have to do a risk assessment is wrong. I fail to see the relevance of incorporation legal jargon, my point in asking whether the club was also a registered charity, which it may well be, was to add comment regarding SORP and the Charity Commission guidelines. Tony

Posted By Adrian Watson Gary, Short, sharp answer; HSW legislation does not apply. Regards Adrian

Posted By Adrian Watson John, However, House of Lords decisions are! The ETA decisions show what constitues a contract of employment. Regards Adrian

Posted By J Knight True, Lords do. I can't remember the details, but think it was in 1996, concerned two fatalities at an archeological dig in Orkney; as I say the finding was that there was an implied contract (the volunteers got board and lodging I think) and the Prince's Trust is an employer. There is another similar case, and I know that as a consequence we treat our volunteers bery much as employees so far as H&S is concerned, though we do have to tread carefully as we don't want to treat them as such for other purposes - it keeps our legal team busy, I'll tell you, John