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Posted By Karen Hodkin
Hi all,
I am doing Risk Assessments for the Dental Profession and a potential client has challenged me about whether Associates count as employed staff. The associates work as self-employed under associate contracts for the practice they are based at. I think these dentists/hygienists count as a member of staff as they work under the terms and conditions placed by the practice owner - am I correct?????
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Posted By Rakesh Maharaj
Karen,
The owner of the practice who also benefits financially from the service provided by his/her associates will not only have certain health and safety responsibility (accountability and liability) for associates but also for visitors and so on under s3 of the Act.
I hope this helps.
R
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Posted By Paul Leadbetter
Karen
The associates' employment (tax) status is different from their status for health and safety purposes; see para 6 of the Introduction to the MHSWR ACoP.
Paul
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Posted By Jonathan Sandler CMIOSH
Basicly the SEP, if they only work for 1 practice should be regarded as as a full time member of staff and therefore has to work withing the guidelines set by the practice.
This would also be part of their insurance libility requirements as a SEP, unless the practice takes full libility.
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Posted By Karen Hodkin
The wording states "Employers who employ five or more employees should record the significant findings of the risk assessment."
Their argument is that they are not employees and therefore don't count as part of the head count
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Posted By Kieran J Duignan
Karen
There's a potential swamp of confusion here.
From the standpoint of the Employment Rights Act 1996, the person who challenged you is correct in terms of the statutory basis of their contracts.
From the standpoint of health and safety legislation, the Associates have a statutory right to safeguards in accordance with the Management of Health and Safety Regs 1999 and other regs.
In the event that you are prevented from conducting a risk assessment, record your judgment in writing so that it expresses clearly what you intended and endeavoured to do as the basis for any testimony you might later be called on to make.
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Posted By Jonathan Sandler CMIOSH
Karen
this type of thread has come up a few times, you might wish to use the search IOSH engine and see what has happened in the passed.
I do not to confuse the issue but would suggest that as Kieran has stated, you could just record the issue or you could ask the employer how they wish to deal with this under their duty of care.
Regards
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Posted By Karen Hodkin
My potential client is considering having the risk assessment carried out, but she thinks that as she has two associates(dentists)and three support staff(as well as herself) - she sees this as three employees and not five so challenged me about whether the risk assessment needs to be written. My opinion is that under health and safety status she has five members of staff and therefore the risk assessment needs to be documented. This seems to be a typical attitude within smaller dental practices as many dentists/hygienists work under associate contracts. How do I convince her and others that the Risk Assessment needs to be documented?
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Posted By Pete48
Karen, for me this is not about legal cut off points or responsibilities but good business management. Perhaps the resistance is from the fact that many of the risks will be controlled by engineering controls and professionally competent people operating to strict standards.
Your client is not questioning the need for assessment just the need to record it?
If they are confident that they could demonstrate or evidence verbally that they have identified and controlled all risks in a s&s manner, then why record anything, just apply the controls. On the other hand, even in a small professional practice, it might prove difficult to demonstrate this without some formal record. The resulting document could be called their safety management plan rather than calling it a risk assessment. Any actions make up the plan for the first year and the reviews in subsequent years drive on etc etc.
You may find that they recognise a need to stay aware and review their plans more easily than just producing a piece of paper to record what they "think" they already know and do.
I am sure you know the things that are required, if not check out the HSE website.
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Posted By Karen Hodkin
Just wanted to say thank-you to all who responded, as always a good source of advice and ideas - very much appreciated. Karen
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Posted By SteveS
Hi Karen,
I'm probably trying to tell granny how to suck eggs, but don't forget the other regs, COSHH, manual handling etc. etc. don't mention the number of employees before a written assessment is required.
Steve
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Posted By Philip McAleenan
Karen,
There is confusion here in regards to “written risk assessments”. First off, all persons at work are required to conduct risk assessments and put in place sufficient controls to ensure that the potential for harm is eliminated or otherwise controlled. This applies regardless of how many or how few employees, associates etc. there are.
There is no requirement for a “written risk assessment”. What is required if that where there are 5 or more employees, the significant findings of a risk assessment are to be recorded.
Now consider this. If the work activity is controlled such that there is no risk, then there are no significant findings regarding risk and therefore there is no requirement to record them. However, if there are significant findings, the activity is not safe to proceed; further controls and safeguards need to be put in place. When these are done, there should no longer be any significant findings, no need to record what doesn’t exist, and therefore the activity may proceed, safely.
Regards, Philip
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