We treat them identically, but we're probably in a different situation - probably 25% of our staff are agency workers, but they tend to stay working for us for years on end. We concluded that the numbers that were short term were small enough the aggro/costs of administering a different system for them was not worth it for a cheap thing like eyetests.

I think it's just another of the costs of taking on a new temp worker - like the cost of giving them an induction and setting up the company systems to recognise them and so on.

Dave,
Whilst levels of risk are different you may like to consider the dangers of not treating agency and fulltime workers in the same fashion...

http://www.shponline.co....es-at-components-factory

If both sets of workers face the same risk then employer needs to use common approach to risk management.
Phil

Thanks for replies. DaisyMaisy I have had a good look at the guidance on this and it appears that the agency should provide, on request, an eye test. I have already carried out a full assessment shortly after temps arrival and this has been requested a few weeks later. However, I have a straightforward system in place and will just provide our temp with the eyetest - for our org it is likely to be an extremely rare event, just wanted your thoughts.

Achrn,
I wasn't necessarily advocating that agency workers should/should not have eyetests but rather that there are dangers in a different approach. Hence the ref to the case law that I spotted just the other day.

I work in the civil litigation area.... and that may colour my thinking. Even if statutory requirements are satisfied there can still be a successful claim against the employer.

First off there is the issue of the contract between agency and employer - that will provide some direction (or should do) as to who is responsible for what.

However, when one returns to the Master & Servant test who is responsible for the work? Who decides how it will be caried out? Who supplies tools, equipment etc? One could go on...
And in my view it is not the agency - even the best in world may have little idea of what is going on in the workplaces where they send agency workers. It is the ultimate employer who controls the workplace and I believe he is responsible for training, PPE etc.

Obviously if an employer asks for a cetificated FLT driver then agency must supply one (or risk breaking terms of their contract) but I still believe that employer at e.g. the warehouse needs to do induction training, needs to monitor the agency driver's approach etc - and take action to make sure they follow the site rules etc. I've seen many claims where an employer has been successfully sued by an agency worker.
Phil

Absolutely agree. b (i) to be mega specific!

The l26 guidance pre-dates the Agency Worker Regulations 2010 and is no longer accurate!

The Agency Worker Regulations 2010 came into force on 1 October 2011 give agency workers the entitlement to the same or no less favourable treatment as comparable employees with respect to basic employment and working conditions, if and when they complete a qualifying period of 12 weeks in a particular job.

The rights which include:
•Paid annual leave
•Rest breaks and limits on working time
•The National Minimum Wage
•No unlawful deductions from wages
•Discrimination rights under the Equality Act 2010
•Health and safety at work.

Appreciate all your comments and I'm now glad I asked the question. I have now issued the test voucher and feel better for it.

I had previously read the relevant part of L31 inc para 31 (b)(1) and had a wry smile to myself! I am not as convinced as others that the above is as specific as first sight suggests (it might be, but it might not) . The wording is

“Employment businesses (agencies) SHOULD …..on request, provide eye tests (and special corrective appliances, if required) to agency worker users who ARE THEIR EMPLOYEES”. (I have used capitals for emphasis)

Many will quote ET cases where the employment (or employee) status of an agency worker is based on who pays their PAYE/NI contributions (usally the agency) but I would suggest that this isn’t a hard and fast ‘rule’ and it is worth noting Dacas/Brook Street (and Haringey – I think). The ET decided that Mrs Dacas was neither an employee of the agency OR the Council. The EAT however, decided that she was an employee of the agency (who appealed) and the COA decided that the fact that the agency paid her, that this did NOT make them the employer. 2 of the appeal judges indicated that it was the Council who was likely to be the employer; the other judge disagreed.

Some employment agencies also contend (I believe as a result of advice from their professional body) that the workers they ‘supply’ are not their employees and that they are therefore not the employer (probably despite the fact that they do deduct PAYE/NI etc) but that the workers are ‘supplied’ on a ‘contract for services basis’.

So, until we actually have a case where the employment status of an agency worker is fully considered in relation to a health and safety issue such as the provision of PPE or eye tests, I fear the question of employee status for agency workers is likely to remain as elusive as ever. It is possible that the AWR after the 12 week qualifying period may help to clarify this IN TIME – who knows!

Do I hear Swedish derogation?

A sensible compromise might be to have an agreement with the agency as to who pays for what. In reality you might find that some agencies will merely adjust (increase) their fees to take into account any additional costs you send their way. If you only use a few agency workers then it might be cost effective just to pay for the test as and when requested.

Some CAPS are used for emphasis.

Agency workers should be fit for duty or you could clain the agency has not provided a fit for purpose member of staff, therefore breach of contract. I know i sound harsh, but the cost to a company can be considerable

THE HSC issued guidance on managing the health and safety of agency workers back in 2006.

I't been a while since I've read it and things may have changed since it being issued, but its a very interesting read.

http://www.hse.gov.uk/ab...e/2006/040706/misc06.pdf

I don't think that it is 'clear cut' that the agency is necessarily the employer, for health and safety purposes, including the provision of eye tests etc under DSE regs or other statutory provisions - see my post at #16.

The DSE guidance says, and I paraphrase “Employment businesses should provide eye tests to agency worker users who are their employees” - note the last 4 words.

The link that Guru provided makes for some interesting reading, as follows:

"Some health and safety responsibilities depend on whether you are the employer. This is determined by the circumstances of each individual case. (and you should be aware that agency workers could be considered your employees for health and safety purposes even if they are not for tax and National Insurance). So agency workers might be employees of the agency, or employees of the business using them..."

"...the most important thing is for both the user business and the agency to clarify and agree at the start of a contract the practical arrangements for day-to-day supervision, direction and control..." - a point I made in my post at #16.

In the grand scheme the provision of eye tests/specs is pretty 'small potatoes', but I suggest that those of you who use agency workers, particularly in higher risk sectors/activities are not 'lulled into complacency' and start thinking that the agency by paying PAYE/NI necessarily makes them the employer or you might get a rude awakening.

Hi DaisyMaisy
On this occasion and as it is rare that we have agency workers I also decided that for the sake of 17 quid our office worker can have the eye test - it has given me food for thought though regards our future policy regards agency workers.

Apologies if that is the way it has come across, I certainly haven't intended it to appear flippant and that I am taking an easy option, but I need to address this current situation now and I can then follow up with agencies etc - my main concern is that we look after our workforce properly whether they are agencies, temps, bank staff whatever. I asked the question in the first place as a situation arose that I hadn't come across before and I have now had several different views and opinions expressed on this. The one thing I have recognized is a gap in our policy that needs addressing.