Mainly the duty is on the one that manages and supervisors the work, gives instructions and training to the individual, and provides the tools to do the job.

The agent is usually required to provide competent staff ie someone capable of carrying out the tasks. So he would have a duty to make checks to ensure capability. No point sending someone to be a bricky that as never been on a construction site or laid bricks before.

Steve

Psion: The duties of the HASAWA fall primarily on the EMPLOYER. The traditional tests for employment used by the courts involves looking at the existence of a contract, payment of wages, tax and NIC's. The Agency worker does not have a contract with the client but with the agency, who will also pay wages, tax etc.

This is an area where judicial comment is needed to confirm previous decisions, as it's been muddied by various assertions, but as it stands I am drawn to the conclusion that the Agency is the employer in law, not the client, who would anyway refute such a suggestion. This might be very inconvenient for agencies but nevertheless someone's employing the worker and it's not the client.

Whilst the agency might well delegate the responsibility to carry out risk assessments, provide PPE etc etc. back tot eh client, it cannot delegate accountability for fulfilling this duty and if anything goes wrong they would be in the firing line.

There are many (including government agencies) claiming that supervision etc. establishes "employment" but this is not what the judges say and without re-writing the law, that's what counts. Ask the question "who is the employer?" and look at case law.

Dave

I fear that the answer is not as straightforward as has been suggested. The test of who pays the tax, NI etc is often seen in ET cases to establish the employer/employee relationship, but I would not takke this as a definitive indicator of the responsibility/accountability for H&S. The answer will take into account numerous factors, and I suggest that one of the more important is who has control over the activities and who is best placed to manage the risks. There is some guidance in the acop to the management regs and there is also other HSE guidance available as well - have a look at the previouly posted links. In many cases there will be a joint responsibility, but the individual circumstances will ultimately determine the answer in each case. We use agency workers on refuse collection rounds, and we essentially have total control of where, when and how they work. I suggest that the HSE and the courts would take the pragmatic view that we would have the bulk of the reposnsibility and accountability. That is not to say that the agency doesn't have any responsibility or that it may not be held ultimately accountable, but I suggest not in many cases, depending on the circumstances.

Readers may find the Recruitment and employment confederation website helpful

http://www.rec.uk.com/home

and in particular this doc

www.rec.uk.com/filegrab/?ref=26

which says something to the effect of what both Steve and me have already suggested, which is that the 'user employer' or client is often best placed to understand and manage the risks associated with the work

There was a paper commissioned by the HSC back in 2006 which provides plenty of relevent answers to questions regarding agency staff, including providing staff for organisations.

www.hse.gov.uk/aboutus/m...e/2006/040706/misc06.pdf

I believe the conundrum can be defined by virtue that HSWA was designed to ensure a) someone is responsible and b) a joint liability could arise. The question of agency workers has been raised before and of course it is normally the employer who is the duty holder. Notwithstanding HSWA identifies employees, self-employed and those affected by an undertaking ie third parties. There is no getting away from liability and it is non-transferable.

Agencies are normally deemed the 'employer' for health and safety purposes and therefore they need to ensure the health, safety and welfare of those they engage. There are exceptions, such as people who are self-employed via a limited company and so on. In order to avoid any complications I suggest taking an holistic approach where the Agency and Client agree terms and conditions which should include such matters as PPE, working hours, breaks etc. After all, we are talking about the good health of human beings here.