My understanding is that under the 'amendment regs' a temporary employee is treated the same as any other, no 'half measures' or part payments. The situation for temporary workers through an agency (agency workers) is slightly different.

Personally, I tend to treat them all the same.

SPR

You appear to be mistaking the wood and the trees here.

The DSE regs and similar laws are designed to protect people from foreseeable harm rather than to act as the kind of tripwires that have given bona fide safety a dreadful reputation in the UK.

In this instance, the relevant criterion to establish concerns the harm to which any particular temporary worker may be exposed in the timeperiod of his/her temporary employment based on the assessment of a relevant professional, alongside the 'so far as reasonably practicable criterion' for each particular individual.

There's no universal basis for deciding that no 'half', 'quarter' or one fifth or one tenth measures may apply as individual differ and the issue is one of qualitative judgment with professional responsibility rather than mere rule-following.

We are conflating three different issues here, so may I just lay out how I perceive the problems?

If you classify the employee [temp or not] as a "DSE User", then the Regs apply in full and the employer must comply with any request for the [totally free to user] eye-test and also the [totally free to user] prescribed remedial eyewear. For "totally free" got to HSWA Sect 9!!!

If you don't classify an employee as a "DSE User", then these requirements are not mandatory. Personally, I find it much easier to consider all DSE operators as "Users" because it then removes any disagreement and conflict that will cost more in the long run that just accepting that they're Users.

Where the employer provides any item or system or training that adds value to the employee, it is legitimate to reclaim those costs if the employee leaves that employment within a pre-determined time period and taking into account whether there is any material item that can be retained and skills that cannot be removed from the employee.

As Bob Youel states, if the employee is a true temp employee, the general costs should be borne by the providing Agency; however, you will have to decide whether the person is a DSE User or not and also provide and pay for any site or activity specific training, materials etc to adapt that temp to your site, which may be reclaimable depending on your contract with the Agency.

it gets really messy then!

Frank Hallett

Hi Canopener

We are actually talking of two distinct issues here and I may have unintentionally engendered a misunderstanding!

The HSWA Sect 9 requirement is absolute and cannot be legally fudged for the employer/employee relationship - whatever it costs, the employer must pay in full!

Being able to contractually reclaim all, or a proportion of HSWA Sect 9 costs incurred by the employer because the employee has left the post before the value of those costs has deemed to be expired is a perfectly legal contractual issue and totally separate from the provision at no cost. It must, however, be clearly addessed in the Contract of Employment before the costs are incurred.

I cannot disagree with your question of "what is a true Temp?"; although there are other issues that arise here and the first is the HMRC IR35 rule! second will be the definition of "short-term", which I have been given to understand in employment law is a contract of 6 months or less and after that HMRC consider them full employees [although this may not be correct - I'm happy to be informed].

For "Agency" provided workers, the Agency is the technical employee for tax & NI, except where that person is a genuine "Self-employed" person; and then it gets awkward.

However, as has been mentioned on other threads, if the person is not deemed to be an employee of the place at which they work; the workplace controller can apply charges for anything that is provided as a consequence of H&S. The only real issue at question is by what route to recoup those costs. It is unlikely that the providing Agency will bear those costs, so they are likely to avoid them by structuring their relationship with the Agency worker so that they bear the costs. Technically legal as I understand it, and definitely not the workplace employers problem.

I hope that clarifies what I was attempting to get across.

Frank Hallett

You have a contract with the agency - what does it say about this matter? My guess is probably nothing. Time, cost and (possibly) quality yes - safety no...

A contract is a legally binding agreement between two parties. You do not have to just sign the agreement offered by the agency - you should always read it and ensure all necessary H&S issues are addressed. I have - an several occasions - successfully expanded the H&S clauses in an agency contract to cover issues such as the one being debated here. Without the detail in contract it is no surprise it becomes a matter of dispute and debate. And things get lost between the two parties (or get duplicated - at one time I was asked why contractors were getting trained twice as often as our own men - turned out their employer was training them... and so were we. And we were effectively paying twice as a result!)

In my (ever so humble...) opinion - if the agency is reputable and wants repeat business with my employer - and employs workers on a reasonable basis - then they (the agency) should have arrangements for those employees to ask for and receive eye tests as required. Otherwise an agency worker transferring between six or more employers in the year could end up with six or more pairs of glasses. And since the agency will not have paid directly for these - it means the cost to employer businesses as a whole is six times what it should be... Individually, an eye test and pair of specs may not amount to much - but in todays economic climate all costs are under review and we (H&S) must not just accept 'its not worth the grief'... H&S MUST be part of the solution and not seen as part of the problem.
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Frank
You make an interesting case to recoup S9 costs and while I am aware of contractual training agreements to recoup CERTAIN training costs I haven’t come across a similar arrangement to recoup other S9 costs e.g. PPE and in the case of this thread, the costs associated with the provision of an eye examination and/or corrective spectacles. I am not convinced that it is “..entirely legal..” by contract to recoup costs as this would appear to me to undermine the concept of provision at nil cost i.e. it wouldn’t be nil cost if you sought to recoup some or all of the cost on the basis that the value of the costs has been realised. I am not aware of any guidance or case law (ET/EAT) that would assist.

It would of course be legal to recoup some costs on termination of a contract (by either party) if the employee did not return items issued to them e.g. PPE but this would seem rather niggardly and rather ‘self-defeating’ in the case of prescription spectacles.

Nevertheless, I totally agree that the provision of training, PPE etc, eye examinations/specs at nil cost in some temporary situations does present some employers with something of a conundrum. Those employers that decide to either not comply with such a duty or who seek to recoup some or all of the costs may subsequently have to defend their decision. The question of who pays for PPE for agency workers has been discussed here any number of times without any general consensus other that it is problematical and best dealt with as part of the pre-contract discussion and contractual arrangements with the agency as Steve has already pointed out in#10. As Steve says, in the absence of any helpful guidance from the HSE it is important to ‘pin down’ the various arrangements within the contract.

The situation for an employee (not through an agency) on a temporary or fixed term contract is somewhat different, and as far as health and safety duties go, I would suggest that the employer is required to treat them as any other employee.

I don’t believe that there is a definition of a short term temporary employee however, temps may accrue various employment rights including permanent status depending on length of service. Similarly, that someone may be an employee of an agency for PAYE/NI purposes doesn’t necessarily make them their employee for employment or health and safety purpose; the Court of Appeal ruling in Dacas makes interesting reading.

In general as far as agency employees are concerned, the health and safety arrangements should be ‘pinned down’ in the contract and generally on the basis of who is best placed to do what. As I have said in #7 (and safe hanz reminded in #10) L26 is explicit in who does what in respect of agency workers, although by contract the host might assume some of the agency responsibilities.

I apologise for having wandered and digressed rather but as far as the OP goes, if the ‘temp’ is through an agency, then I suggest you be led by L26 (which is unusually explicit on this issue) but if you are employing people directly on temp contracts, then I suggest you treat them as any other employee and seek to ‘fix’ and control your costs associated with complying with DSE regs by using a voucher scheme.

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