Posted By AHS I recently read an article in a health and safety bulletin letter that stated that the safety of temporary workers was primarily the responsibility of the agency that sent them - and went on to advise companies that if they included this point in the contract with the recruitment agency all would be well. I strongly disagreed and thought that the company had at the least a joint responsibility with the recruitment agency regardless of what was contained in the contract. My view is the recruitment agency is bound by Sec 2 HSWA 1974 and the company in this case a bank by Sec 3 of same. Your views with maybe some case law would be appreciated.

Posted By ddraigice See http://www.hse.gov.uk/en...tion/status/specific.htm

Posted By Merv Newman Employer is responsible for the safety of employees and for supplying PPE. User company is responsible for the safety of people on it's premises. Agency should be informed of required PPE. If temp turns up without the PPE then they can be sent away or, if the contract is correctly written, the agency can be billed for the PPE.

Posted By Jez Corfield Not sure if its a clear cut case of do or dont, we do DSE assessments on our temps, (it establishes that we have at least provided them with a basic and satisfactory work environment) and with footrests/document holders etc, however we will not provide them with specialist equipment/software, or health assessments - we refer these back to the employing agency. Jez

Posted By AHS As I read it the Bank can be criminally prosecuted under Section 3 the Temp Agency under Sec 2. But the company may be able to avoid civil claims if they have a carefully worded contract drawn up as HSWA 74 carries no civil liability and delegated regulations such as DSE/PPE only apply to the employer?

Posted By Lilian McCartney This is what we do with agency staff (we support people in their own homes) The agency is advised what we need the person/people to be able to do and with regard to what - this inculdes H&S (e.g. infection control procedures, Disclosure Scotland clearance, working with people with mental Health conditions etc) We give them a list of what we require. They then have people ready for when we need them. We do checks to make sure they are supplying what we asked for. When the agency worker arrives at site they are 'inducted' in our systems, procedures etc. Most of our PPE is disposable anyway so that is supplied by us. I doubt we would pay for anything else and expect the agency to provide their employees with it. Temps who are not agency but employed by us go through the employee Induction/training programme as applicable to their duties. This is the same for Casual/Relief Workers whom we employ. Casual/Relief also have employee Learning & Development Portfolios. Merry Christmas Lilian

Posted By Jonathan Breeze PPE, quite possibly Hilary. However, in the situation described by AHS (assuming I read the same publication) the case involved a DSE workstation suitable for a 6ft 7in individual. I don't think an agency would be responsible for providing this kit. In the light of this information, I reckon it is probably up to the employer to modify the work environment or refuse the Temp in question on the grounds that you cannot provide a safe working environment. You'll still probably end up having to explain yourself, but to an employment tribunal rather than a court. The term "damned if you do, damned if you don't" springs to mind.

Posted By AHS I am confident that criminal prosecution can be brought against employers that seek to fob off HS to employment agencies. However there is still the concern regarding whom they would seek compensation from and how. I feel they could claim under the MHSWR 2006 Reg 11 cooperation and coordination from both the bank/temp agency and of course the tort of negligence.

Posted By Simon Wakeham In response to the original posting, as the Editor of the “newsletter” I would like to offer the following. At no point in the article do we state that Barclay’s have no responsibility for the temporary worker who’s suffered the back injury. The main point we’re making and one we’d like to make again, is that the agency, not Barclays, who have ultimate responsibility for the health, safety and welfare of their employee. So, if their employee has a safety issue in the workplace that he’s been placed, his first point of call should be his employer, who should then take this up with their client i.e. Barclays. In the article we also advised that if you find yourself in a similar position, rather than ignore the problem, you should try and make some “reasonable adjustments” i.e. another chair or desk which may be more suitable, if they’re available. If this isn’t an option you should work with the agency to find an alternative solution. So we haven’t said ignore the problem completely, but we also haven’t advised to go and buy a new desk, chair etc. for someone who might only work on your premises for a matter of days. The article makes no reference to the supply of PPE, but as an aside, we do not think an employer is being tight, if they seek to recover the costs of the PPE from the agency. In fact, an HSE inspector I asked about this very point agrees. He informed us of a case he’d investigated in which a well-meaning employer had supplied the “odd bit” of PPE and the agency that had supplied the temps, had managed to avoid supplying any PPE at all. The inspector didn’t ignore this fact and pursued the agency. In doing so he found not only weren’t they worrying about supplying their staff with PPE, but they’d done absolutely nothing to ensure the health, safety and welfare of their staff. The inspector then issued the agency with the appropriate notices to ensure this situation changed. Simon.

Posted By Frank Cooper As co-author of the article referred to I wish to comment as follows:- Employment Agencies may provide workers to other businesses on a contract basis. They do this for a fee and pay their agency employees themselves. Hence they become, in law, the employer. As such they are responsible for all aspects of health and safety law that applies to employers. However, the business that is using this labour does indeed have some responsibilities but this is mainly down to the requirements of Section 3 of HASAWA – Duties to others not in their employment. The Management Regs do indeed talk about agency and temporary employees (Sections 11 onwards) and state that the important point is co-operation between all parties. In the case referred to in the article the main thrust is the fact that all businesses who engage agency workers must ensure that the terms of the contract with the agency reinforce health and safety responsibilities and to remind the agency, as the employer, of what is to be expected of them. This is all part of “co-operation”. There is no mention in the article of the business disregarding its responsibilities and as the case has still to be decided it will be for the courts to reach a decision based upon the facts of the case. The recommendations in the article for the business to make reasonable adjustments for the agency worker is a valid point but this can only be taken so far for people who may be working in your premises for only a very short time. The importance of ensuring that agencies provide employees who match the work that they are being asked to undertake is paramount. Putting the wrong person into a job can be disastrous for all concerned – the business, the agency and the employee. Businesses should ensure that agencies are given sufficient information about the work requirement (and this may well include any risk assessments, expected levels of competency etc) to allow the selection of the most appropriate people. As the article says, if the business cannot guarantee a particular agency workers safety because they are unsuitable for the type of work, then the agency must accept the responsibility and provide an alternative employee.