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Posted By Jason McQueen
Can someone please remind me of the criteria test for assessing who actually employs and individual (I dont have any of my texts handy for the full list)? We have a situation this morning where we have a problem with an agency worker. The employment agency are saying that he isnt actual employed by them and that they just give him work and the company is also reluctant to class him as an employee as (as far as the company is concerned) he's employed by the agency.
(This is turning out to be a busy day - two threads within one hour!)
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Posted By Les Mullen
Jason
Without going in to the problem you are having with this worker and only staying on the "who,s employee" the worker is then if the Agency pay his saalary and deducts tax then the agency employs him/her.
Les
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Posted By Jack
Some agency staff are employed by the agency others are self employed. Before engaging them you obviously need to know which they are.
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Posted By Heather Aston
Jason
What's the issue you are having a problem with if you feel able to say - we might then be able to advise better.
Heather
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Posted By Jason McQueen
Its basically down to the reporting of accidents. The agency are saying that hes not one of their employees as they just provide the work.
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Posted By Jason McQueen
Pretty much what we discussed before Heather but I just wanted the test criteria that is typically used for assessing employment status.
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Posted By Heather Aston
Jason
You know my opinion on the RIDDOR question, but I can see why you've raised it again if the Agency are being awkward. Bottom line is if they pay the guy and deduct Tax and NI for him then he's their employee. If not, he may well be self-employed. Either way he's NOT your employee.
If the Agency won't play I would suggest the following:
1. Report the accident yourself. Make it quite clear that this an agency employee. Note it as such in your internal statistcis as well.
2. Find a new agency.
3. Clarify exactly who does what as part of your initial discussions with the new agency.
We had a similar problem (not over RIDDOR specifically) and we changed agencies as a result.
Good luck
Heather
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Posted By Robin B
If the accident was on your premises you have to report it via RIDDOR regardless of who pays the guy and deducts tax. You can mention in the report that the agency is refusing to acknowledge their responsibilities
Robin
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Posted By Heather Aston
Robin
No you don't. We had an extensive discussion on this one a few months ago. You are only liable to report accidents to your own employees and to members of the public who have an accident on your premises and are taken to hospital.
Accidents to non-employees such as contractors and agency workers have to be reported by their own employer.
However if the agency won't acknowledge their responsibility I agree it is more important that the accident does still get reported by Jason's company - even though it is NOT their responsibility
Heather
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Posted By Merv Newman
Absoultely agree with heather. Report it under riddor. The agency may not report it, despite all your efforts and if it eventually causes bad publicity you can find yourself right in it.
And it was probably your fault anyway.
Love and Kisses
Merv
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Posted By Dave Daniel
I discussed this with an Agency at length some years ago. Neither Agencies nor their clients want to accept that they are the "employer" and some agencies have even suggested that workers are self-employed.
By the traditional test of paying PAYE and NICS the Agency would be the employer, although the Inland Revenue is busy trying to redefine employment to assist in extracting "the right amount of" tax from some of us... (including me!) There is however precious little caselaw to make such a change.
When you look at the dog's breakfast which is UK safety legislation this creates many problems. Some Regs put duties of assessment firmly on the employer (e.g PPE). Others put duties on the Client. There is absolutely no consistency and Agencies are poorly placed to discharge their duties if they were the employer.
My best advice would be to regard Agency workers as a sort of visitor to the factory to whom there are civil duties (Occupier's Liability Act) and treat them accordingly.
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Posted By Michael Baron
Hi Jason
I have been down this road a lot lately. I have come to an informal agreement that we will report the RIDDOR and notify the Agency in writing that we have done so (and attach a copy of the RIDDOR report).
Some key things to remember are that the person completing the RIDDOR form should also be providing information on how the accident or incident occurred and what measures are being put in place to prevent recurrence. In my view most Agencies would not have a clue as to the issues in our business and I would not trust them to convey an accurate account in the RIDDOR report.
Also there is the issue of control. Most Agencies merely provide labour, in our case we are the people who have control over the work activities and the work methods utilised by Agency employees working on our premises. In the event of interest from HSE, ask yourself this:
Is the HSE Inspector going to be primarily interested in the employment agency's procedures for providing labour or is the Inspector going to be imore interested in your work activities that lead to the accident?
In my view it is better to retain as much control over the situation as possible and you lose nothing by reporting the RIDDOR yourself.
Mike
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Posted By David.G.C
who pays the wages and Ni etc are essentialy the employer however in terms of Health and Safety agency workers would be regarded as direct employees and therefore need to adhere to your rules and procedures.
If I will be hiring agency workers, what do I need to consider?
If you hire agency workers, there is a legal requirement to inform the employment business (agency) hiring them to you about risks to the worker’s health and safety and steps you have taken to control them, this would be by providing relevant risk assessments and Method statements directly to the agency; including any necessary legal or professional qualifications or skills/training which the worker may need; and any necessary health surveillance. The employment business/agency should pass this information on to the worker in a way that he/she can clearly understand, and you must ensure the worker has received and understood it before works commence.
you now maybe thinking what more paperwork.
with regard to reporting an accident you could report the incident on their behalf advising the agency on this matter.
i hope this helps
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Posted By Eric Burt
Jason
I covered this topic as part of an MSc course.
An employee is someone with whom you have a contract of employment - this can be implied or written.
Basically there are many Employment Tribunal cases where agency workers have claimed unfair dismissal and when considering whether a agency worker is an employee of the host employer they usually consider how long the agency worker has been with the host employer, the degree of control the host employer has over the worker and whether they are 'badged' as an employee of the host employer (i.e. they wear the company's uniform).
I have also been involved with an accident with an agency worker where HSE prosecuted the host employer under section 2 HASAWA as they considered the worker to be an 'employee'.
I have come to the conclusion that for all intents and purposes, the agency worker should be regarded as an employee of the host employer.
this then opens a whole can of worms.....
I have suggested to HSE that a set of Regs along similar lines as the H&S (Training for Employment) Regs 1990 would help to clarify this issue.
There are also a couple of EU Directives on this issue which some member countries (including the UK) have yet to implement.
Check out the Simon Jones Memorial campaign (Mrs Jones is speaking at a conference in London next Monday at Congress House) and comments by George Galloway that he made to the Commons on agency workers.
Eric
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Posted By Jason McQueen
Just a bit of a follow up from this......
I made the reports as the agency wouldnt budge and at the end of the day as long as someone reports I dont suppose it makes a great deal of difference.
I was more interested in the technical ins and outs of this anyway. What I did find interesting is that the agency says that they employ the temporary workers on a contract for services, as opposed to a contract OF services.
Now if i remember correctly, this is the distinction between an employee and a contractor. How can employment agencies retain operatives as contractors when they are the ones who pay their wages and make their NI contributions?
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Posted By Eric Burt Jason Eversheds solicitors have just published a note about agency workers with some recent case law which you may find interesting. Here's the link http://www.eversheds.com...eleases/newslist-567.aspI am surprised that the agency has made the distinction between contract of service and contract for service. This is normally made by the host employer. Regards, Eric
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