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Posted By Tony W
Does anyone out there believe (like me) that agencies have h & s responsibilities for their 'contractors' when they are placed at the 'user business'?
Tony
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Posted By Miss B
Tony
I would say that the agencies as the employer are responsible for the contractors. This would include risk assessments, method statements and relevant Coshh. Also I believe the provision of PPE would be the responsibility of the agency.
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Posted By martin north east
i could be wrong in my interpretation of the law but here is my slant on the situation!
the agency worker is efectively there employer however it would relate more to the provision of payroll and holidays etc... as the company employing the agency work tends to select the staff given by the agency for interview i.e. assess there level of competence and provides all of the work equipment and workplace facilities, in my eyes (unfortunately)the buck stops with the employer of the agency.
i know i will probably get wrong now and get great detail about the legal side of things, but in a simply way! this is my inperpreatation which is based on experience.
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Posted By Tony W
Thanks for the responses. I am told that there was a recent court case which now suggests that agency workers could now be considered as employees of the user business. Anyone aware of this?
Tony W
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Posted By lawrence baldwin
Tony
Have a look at this:
Reg 20 of SI 2003 No 3319 The Conduct of Employment Agencies and Employment Business Regulations puts a duty to the Agency.
But that can only be truly discharged, in my opinion, by entering into dialogue/visiting the agency, identifying job descriptions with essential criteria and necessary competencies, assessing those individuals on site and feeding back such assessments. Also verifying and agreeing before hand who will be responsible and for supplying what regarding PPE or such issues as health monitoring that fall to an "employer" etc etc and then a safety induction when on site.
irrespective of who is deemed the "controlling" mind, all parties have duties.
Lawrence
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Posted By Peter Taylor14
Just stop using agencys, employ workers properly and then have full control
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Posted By Tony W
Thanks Lawrence. I am aware of the Regs but is it not the DTI who 'enforce' them?
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Posted By lawrence baldwin
Hi Tony
Possibly, which is about as nebulous as the regulations and likely enforcers are to be.
If you have an issue with compliance, then being proactive as identified is one way, then either changing the agency for one which satisfies your criteria or treat the sub-contractors as employees for the duration of the contract is another.
It is a grey area, I am fortunate, in the 3 Employment Agencies I deal with, each are pro-active and we regularly meet to discuss H&S issues as well as competencies and assessments with the good and the bad. That however may be oversimplifying the issue, I am in a position where this is both practical but also expected of us by our clients.
Lawrence
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Posted By DJ
Lawrence,
While I agree with you regarding Regulation 20 of SI 2003/3319, once the employee is placed with the employer, it is likely that the employer and not the agency will be liable for the employees health and safety at work.
I cite as evidence of this proposition:
SP Bunce v Porthworth (t/a Skyblue) (2005); and
Cable & Wireless Plc v P Muscat (2006).
In the latter case, the court held that there was an 'implied' contract of employment between the employer and the agency worker.
Regards.
DJ
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Posted By lawrence baldwin
DJ
Totally agree and would not refute, to ignore an "individual" because he is not an "employee" of the parent company could be negligent in the extreme. There are however elements that do need an agreement where the duty falls to the Employer such as health monitoring and with this most commonly noise.
But I reitterate what I have said previously, and to establish the levels of responsibility by dialogue beforehand and on a regular basis is simple communication, proactivity should remove the "assumtion" of responsibility which was what I was alluding to originally.
Lawrence
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