Hi all,

I work for a medium sized contractor. I, along with all the management staff at the company are directly employed. However, all the guys doing the work on site are self-employed (CIS). 

I have recently been involved in a disagreement with a manager at a contractor i work for about the responsibility to provide PPE to them. His opinion is that they are self employed and therefore responsible.

My opinion is that as they are working "for" us, to our RA/MS, that we should be providing all relevant safety equipment which they need. I know that i am right (whole "master/servant relationship" thing) but i am struggling to find a good, solid source which i can email to the person in question (ie something from the HSE).

Anybody got any suggestions...?

Many thanks in advance.

Edited by user 25 July 2017 15:32:08(UTC)  | Reason: Not specified

With respect, i do not agree.

If we were to subcontract the work out, as a whole, to "Joe Bloggs Ltd" then they would of ocurse be responsible for providing PPE to their staff.

However this situation (which is very common) is not so cut and dry.

What i am talking about are individuals employed on a labour only basis. We supervise them, we prepare the RAMS etc, we instruct them what to do. They are employees in all but the way they are paid. The following extract is from the HSE supporting what i say, i'm just after something a little bit blunter and more to the point...

"Labour-only subcontracting is particularly common in the building and construction industry . In this situation, the main contractor engages the labour needed on a project by sub-contracting specific jobs to workers (sub-contractors). The legal status of such a worker depends on the normal application of the various criteria listed above. The courts have shown a willingness to overlook the fact that the worker is described as "self-employed", if the other factual circumstances actually point towards employment."

Another extract from healthyworkinglives.com...

The self-employed also have a duty to obtain and use the appropriate PPE wherever there is a risk to their health and safety that cannot be adequately controlled by alternative measures.

The only exception to this is for those who are classified as self-employed for tax reasons, but who otherwise work in an employee-employer relationship. In this case it will be for the employer to provide suitable PPE.

Edited by user 25 July 2017 16:14:08(UTC)  | Reason: Not specified

I think the tax man will disagree with you that they are self employed.  The interpretationof employee v self employed contractor is at the heart of a number of recent decisions by HMRI.  Your company determines hours of work, directs activities and materials used thus these people are employees.

Thanks for the replies everyone. As per my origninal post, i'm well aware that the guys need to be treated as employees, i was just looking for somewhere that spelt this it out in black & white that i could forward to the managers at my firm (as opposed to pointing them towards complex legal cases). In the time since my orignal post i came across these which seemed to get the message across...

Healthy Working Lives

The self-employed also have a duty to obtain and use the appropriate PPE wherever there is a risk to their health and safety that cannot be adequately controlled by alternative measures. The only exception to this is for those who are classified as self-employed for tax reasons, but who otherwise work in an employee-employer relationship. In this case it will be for the employer to provide suitable PPE.

Health & Safety Executive

Labour-only subcontracting is particularly common in the building and construction industry . In this situation, the contractor engages the labour needed on a project by sub-contracting specific jobs to workers (sub-contractors). The courts have shown a willingness to overlook the fact that the worker is described as "self-employed", if the other factual circumstances actually point towards employment.

Robert Gerard (Commercial insurance provider)

A labour only subcontractor is, as its name suggests, an individual or company supplying labour only, working under the direction and control of you as an employer who will take on the responsibility for risk assessments, method statements and provision of materials and equipment. As an employer you have a statutory duty under Health & Safety law to protect labour only subcontractors the same as you would PAYE employees.

Schemeserve (another insurer)

For the purposes of UK labour law; a labour-only sub-contractor is an employee. They do not provide their own materials and tools normally. They work under the direction of the contractor.

It is my understanding the status of a worker is generally based on three principles - employment law, HMRI and health and safety law. With regards to the latter, a person's status will be based on the 'master/ servant' principle. I think the following link will explain the details better than I can.

http://www.hse.gov.uk/enforce/enforcementguide/investigation/status-contract.htm

Additionally the most powerful day to day law we have [far more powerful than tax [including VAT] and H&S law] could easily apply - e.g. Social Security law; and it is the case that these self employed people could easily be seen as employees so the company could be made to pay back national insurance as has happened many times before [much case law re this area is in place] and SS law uses the "who controls who" factor to determin such situations

And at this time there are very strong moves [lead by banks and the pensions people] to get all ordinary UK people on the PAYE books and not to pay cash at any point especially to so called self employed people [many of which are forced to be self employed] - companies have been using this self employed angle for years so as not to have duties and liabilities but time is fast running out

whilst the above points may not seem a H&S issue all areas are connected - best of luck

Originally Posted by: firesafety101

Do they attend site suitably dressed in PPE for their works?

If not turn them away, No Hat No Boots No Job.

Some firms operate this type of policy. The problem is that if the work needs to be done sending someone away is not much help. The alternative is to keep a stock of PPE to be used as and when. You could charge for the PPE of course, but really, how much would a hardt hat, hi-vis, glasses and gloves cost in the bigger picture?

Originally Posted by: RayRapp

Originally Posted by: firesafety101

Do they attend site suitably dressed in PPE for their works?

If not turn them away, No Hat No Boots No Job.

Some firms operate this type of policy. The problem is that if the work needs to be done sending someone away is not much help. The alternative is to keep a stock of PPE to be used as and when. You could charge for the PPE of course, but really, how much would a hardt hat, hi-vis, glasses and gloves cost in the bigger picture?

RayRapp,

Correct, many principal contractors do operate this and make a healthy profit off selling PPE to companies who arrive on their sites without the correct PPE. 

As per my post above though, this is a different situation.

When we employ labour only contractors we ensure they have their own boots (which are universal and they will need at any job) but we provide everything else required for work on our site.  If they are long term contractors (over 6 months) we provide their shoes as well.

We find most people think this fair.