Hi Nimble, I would suggest that the drivers are employees for h&s purposes since no doubt the transport company is paying them? Alternatively, they would still fall under s3 HSW 74 in that they are not employees but are affected by the business operations of the transport company - so a duty of care still applies with the consequent requirement for the transport company to provide a safe working environment etc. They can wriggle, but they can't escape their responsibilities!

Hi Bob this is exactly the issue; at present there is zero management of road risk even though the "sub contracted" fleet is just shy of 1000 vehicles and drivers all directly contracted. The management is more concerned with HMRC then the HSE perhaps understandibly

The HSE leaflet INDG 368 deals with the situation where a company employs contract staff supplied by an agency. In essence the company must carry out a risk assessment in conjunction with the agency; must provide appropriate information, instruction, training and supervision; and must manage the work of the contracted staff. In other words they cannot just shrug their shoulders and walk away from their responsibilities. If the company is not using an agency but employs a pool of "freelance" drivers, i.e. individuals each working on a contract basis, then I would still argue that - at the very least - the company owes them a duty of care under s3 HSW74 to keep them safe in the workplace. And how can they do that if they don't do risk assessments and design safe systems of work? Hence I would also argue that the requirement to conduct risk assessments still applies. If this were not the case then you'd effectively have two classes of worker: those on the payroll who are protected by h&s law; and those on contract who have no entitlement to protection. That cannot be acceptable!

Hi Nimble, I think the legal bods could have a struggle to justify ignoring h&s legislation - and thus putting drivers at potential risk - just because there might be tax implications! Worst case scenario: driver receives fatal injuries due to h&s failure (e.g. not wearing a hi-viz jacket because the company failed to issue one and failed to warn him about the dangers of being struck by reversing vehicles). HSE investigate and find lack of h&s management across the company. Even worse, they uncover a policy of deliberately ignoring h&s responsibilities. Outcome: company faces prosecution for corporate manslaughter, and senior management each face individual prosecutions for gross negligence manslaughter and for breaching s37 HSW74. Me? I'd opt to pay the income tax and stay out of jail :0)