Posted By Mark Bywater Steven, We recently had a case where a contractor broke a couple of fingers and took a week off work through the injury. We discussed this matter very much like yourself and came up with the answer that it was on our site so we were responsible for reporting it. Conversely, our canteen is run by an outside contractor and when the manager slipped and broke her wrist we insisted that they should report this as they had control over the area i.e. the kitchen. So the answer we have come up with depends whether or not we have control over an area or their actions (master & servant) regardless of who pays the wages. Other companies may vary from this, but I would suggest that you should report on behalf of the agency staff. Regards, Mark

Posted By Peter Lee Also if your main work activity is warehousing then it will be reportable to the Local Authority not HSE.

Posted By Steve Sanders The whole question of who is the employer is a complex one, especially when dealing with agency labour. If the worker was under your company's control, your best course of action would be to report the incident yourself. Steve

Posted By Jack Just because you have received differing responses does not necessarily make it a grey area! As has been stated it is the persons employer. Rather than report it to the enforcing authority it would be better to pass on all the required information to the Agency so that they can report it. I would also check that they did as part of the contract monitoring arrangements.

Posted By Pete Stewart All to often an agency will not report, as it may thow up other problems that they would rather not have uncovered. It would, therefore, be prudent for you to report the matter as well as advising the agency that you have done so.

Posted By Adrian Watson Dear All, I agree in theory it's simple, you should just ask 'is there a contact of employment between us?', if the answer is yes, the person is an employee. No problem! However, there are a number of occasions when self employed persons, agency staff and other peoples' employees have been deemed by the courts to be employees for the purposes of health and safety, employment and tax laws. The test is (1) the person agree to use his own work and skills in the performance of a service for his master for wages or remuneration, (2) he agrees to a degree of control, and (3) the other provisions of the contract are consistent with its being a contract of service. See: Ready Mixed Concrete (South East) Ltd Minister of Pensions and national Insurance [1968] 2 QB 497, QBD (MacKenna J) Motorola ltd v Davidson [2001] IRLR 4, EAT Young & Woods v West [1980] IRLR 201, CA

Posted By John Murgatroyd I think you'll find that the definition of "employee" is considerably more difficult than you think. And it's only going to get harder. You need to consult a GOOD specialist in employment law. Better still, just report it anyway. Better: Did you note the accident in the accident book ? Yes ? Then report it. ******************************************* An agency worker whose contract is with an employment agency but who is supplied to work for a client of the agency may be an employee of either one of them or may be self employed. However as a general rule he or she is most likely to be an employee of the end-user client and it is very unlikely that he or she will be an employee of the agency and unlikely, though less so, that he or she will be self employed ( Dacas v Brook Street Bureau (UK) Ltd & anr CA 2004 EWCA Civ 217 on 5th March 2004). Hopefully any resulting problems will be rare in future as the Conduct of Employment Agencies and Employment Businesses Regulations 2003, SI 2003/3319 ensure that as from 6th April 2004 the precise contractual position between agency, end-user client and worker must be agreed and set out in a single document before the hiring starts (regs 13 to 17 and see notes at Employment Agencies/2003 regulations ) There is a trend is to give statutory rights to everyone who qualifies as a worker rather than just to those who qualify as an employee (see for example the 1998 Working Time Regulations and the National Minimum Wage Act ss.1 and 54). This is an obvious consequence of the ending of the "job for life" culture which has underpinned much of western 20th century employer/employee relationships. Indeed the Employment Relations Act 1999 s.23 gives the Secretary of State (DTI) power to extend the protection of employment legislation to individuals who are not "employees" (see notes at ACTS OF PARLIAMENT etc/Employment Relations Act 1999/a general note ). Likely developments were foreshadowed by a DTI report entitled "The Future of Work, Looking Ahead 2015", August 1999, followed by a DTI discussion paper (URN 02/1058) on "employment status in relation to statutory employment rights", July 2002 (consultation ended 11th December 2002). The first and basic question considered by the 2002 consultation was "whether there are any categories of working people currently excluded from statutory employment rights who require the protection provided by some or all rights and how they would benefit". Notwithstanding this trend, and by way of exception to it, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 SI 2002/2034 apply for the benefit of employees only, not for the benefit of workers generally (see notes at Fixed term contracts/2002 regulations ).

Posted By John Murgatroyd well, agencies are renowned for avoiding responsibility. An ad in the local paper: "successful applicants will have to provide their own safety footwear"...........another agency advert. A lot of their "employees" are self employed, many are on such short term "contracts" that they count as very part time. They have no idea of health and safety, and little about employment law or indeed any law. Hence the reason why they are shortly to be reined-in, drastically. But, if they're on your premises and you control what they do, they're your responsibility. Poor you. One company I work for won't have anything to do with them, as the safety guy says: they're more dangerous than a can of petrol in a welding bay.

Posted By Steve Langston Just to say that in my experience with "agency workers" they are not employed by any company. The agency act as the term implies - an agent. In other words they put unemployed people in touch with companies who have vacancies and recieve a fee for doing it, (a similar scenario to travel agencies and estate agents). There is normally a contract between the agency and the worker that specifies they are self-employed. As such it should be the worker themselves as a "sole trader" or "self employed" person who reports it to the enforcing authority. This is highly unlikely to happen. As stated above in various comments, under such circumstances it would be advisable for the site/employer where they are conducting the work to report it to the enforcing authority. as they have the most control and supervision over day to day activities. At the end of the day what is worse - the agency and the host employer both reporting it or the injured party complaining to the HSE/LA of unsafe procedures and a full investigation taking place (with a breach if RIDDOR inevitable)? It takes 10 minutes to report it but probably a good few hours of employee time accompanying the inspector during the investigation. As an ex enforcement officer i preffered to have it reported by someone rather than no-one so at least we could advise the relevant parties of the correct future actions!

Posted By Steve Langston John The employer should be the person responsible for reporting agency worker accidents I agree. However agency workers are not normally employed by anyone, they are self employed and have a contract with the agency themselves that spells this out. Therefore I have, (and would) continue to report incidents to the enforcing authority if the agency worker was injured during my employers undertaking. Steve