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Posted By Paul Swift
Hi All
A business I have contact with has a dilemma - do they need written H&S policy?
On the face of it a simple question with regard to the five employees rule. However they seem to have made things more complicated for themselves by having only four direct employees in the UK and employing another two that are permanently based in (and nationals of) another EU country. These two employees operate from the offices of an associate company and also perform duties for the associate company.
Does this take them over the five employees for UK purposes or can the two based permanently abroad be discounted as they would be subject to the H&S laws of the other country?
The company has been given conflicting advice on two separate occasions by their local EHO.
Thanks in advance for your views!
Paul
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Posted By Raymond Rapp
Paul
Don't know is the simple answer. However, if in doubt carry it out. Why only do things because it is the law? Health and safety is also about good practice, being proactive etc.
Anyway, as a consultant you should have a number of templates to 'cut and paste'. Nice little earner (did I say that?)
Ray
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Posted By P.R
Hello Paul
I would be inclined to agree with Ray. The legal aspect should be considered a minimum standard, so why not better it and have a written policy regardless?
makes sense to me!
Peter
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Posted By Paul Swift
Thank you both for your replies.
I agree entirely with your opinions, and this is the advice I have given. Unfortunately the MD of the business is one of those people that will only do the minimum required by law and is not interested if he is not obliged to do it, hence the question.
Regards
Paul
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Posted By Alan Hoskins
Are you counting the MD as one of the employees Paul? If not, that could take you up to five...
Alan
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Posted By peter gotch
Paul,
According to Osborne v Bill Taylor of Huyton Ltd [1982] ICR 168, DC, regard must be had only to employees present on the premises at the same time.
So only 4 max at same place at same time, assuming you have counted the reluctant boss who is almost certainly an employee, in which case you may have reached the 5 person threshold.
Of course, if this company is part of your supply chain, you could make a policy statement a contractual requirement if you think this necessary in terms of your procurement strategy.
Regards, Peter
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Posted By MarkS
Paul,
If its any help, Osborne v Bill Taylor of Huyton Ltd rules on the exemption to prepare "a statement of general policy" and only that, there is no exemption from other duties outlined elsewhere in the H&SAWA nor from those outlined in the management regulations which may require a record in writing.
Given that a general statement is normally pretty short I can't see what this individual is fussing about. How do they record risk assessments ?
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Posted By Paul Swift
Once again, thank you for the responses.
The case law has been quite useful in unravelling the problem. Following it through I have found Local Authority Circular 38/3 which states that if the undertaking has a number of small sites where the total number of employees is 5 or more there is a requirement for a written policy.
On the face of it this would suggest that the company has a requirement, however my original question still stands: does this apply when the second of the two establishments is in another EU country and staffed by nationals of that country?
In answer to the questions raised; the MD is included in the calculation, giving a maximum of four employees in the UK office "for the time being" and a maximum of two in the office abroad. Risk assessments are not currently recorded for the same reasons as the lack of policy statement
Regards
Paul
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Posted By Darren J Fraser
In reply to your question regarding the employees outside of the UK, they are covered by the relevant laws (H&S, Employment etc) of the country that they are working in, not the laws of the country that the head office is based in, therefore in answer to your question a policy is NOT required by law as the total number of employees within the UK is 4.
However, I would ask the MD why they are not prepared to have a simple policy drawn up? maybe Google same industry and demonstrate good practice etc, if they were to employ another person and take the number to 5 it would be required anyway.
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Posted By Jonathan Breeze Perhaps the way to approach it is to say you are removing the legal barriers to future business expansion in the UK. In any case it's not the onerous task the boss seems to think. Just sit them down with a copy of INDG 259 (see link) and get them to fill in the blanks. http://www.hse.gov.uk/pubns/indg259.pdf
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Posted By Alan Hoskins
Maybe it's about time HSE revised this 'rule' of five. It isn't difficult to produce a written policy statement.
In another life I act as Clerk to my local Community Council, where I am the only employee. We have a H&S policy and a Child Protection policy. (no written risk assessments though).
Alan
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Posted By Jonathan Breeze
Of course the real trick is then helping to change the underlying culture of resistance.
That is the root cause of the problem. The manager you describe seems to be just using the law as a fig leaf for their own intransigence.
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Posted By Crim
How do the employees in the EU get paid? Is it from the UK? If so does this have any bearing on employee numbers and whether or not to write a safety policy?
I have a Client who is self employed and employs his wife as admin assistant. He has a written safety policy and recently asked me to provide a review. He also has written risk assessments.
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