Posted By J Sursham
The following sounds a bit like a NEBOSH question -

“A employer is the owner of a sizable country mansion and to maintain the grounds and keep house he engages a butler, housekeepers, chef, four gardeners and maintenance personnel, all of whom work within the private boundaries of his dwelling. He is enquiring about his legal responsibilities towards his staff and the application of the Health and Safety at Work Act in these circumstances”.

Does anyone have experience, knowledge of any case law or a view as to the application of Section 51 of the Health and Safety at Work Act and the definitions of ‘Domestic Premises’ as given in S53?

Posted By Adrian Watson
Hi,

If a person is soley employed as a domestic servant in a private household then the act does not apply. S51 refers.

The question therefore is who is a domestic servant. Having regard to this question, you must must ascertain whether each person is a servant? I suggest that this is anybody under a personal contract of service.

Secondly you have to determine is the servant a domestic servant? The question here is a domestic servant, a servant employed to work within the household or is a domestic servant a servant employed to work, by the household?

Having regard to the definition in S53, as to what is domestic premises, which includes garden, yard, garage etc, and the purposes of S51, which is to prevent the intrusion of the act into a domestic household then I suggest that a domestic servant is any person who is under a contract of service to a household.

Therefore I suggest that the act does not apply to anybody who is soley employed under a personal contract of service by the household to carry out work related to the running of the houseold. As such the act is unlikely to apply to any of the persons described.

There is no case law on this issue.

Regards Adrian Watson

Posted By Steven Mellor
I would suggest that the law applies equally to domestic servents. Doesn't all employment law derive from the master / servent relationship anyway?

Posted By peter gotch
J

As you and Adrian indicate Section 51 of HSWA excludes its application to employment of a "domestic servant in a private household".

HSE website comments

Domestic servants

Section 51 HSWA states that Part 1 of the Act does not apply in relation to the employment of domestic servants in a private household. HSE cannot therefore enforce the provisions of HSWA against an employer insofar as those provisions relate to the employment of a domestic servant, nor against the domestic servant him/herself.

There is no case law that provides definitive guidance on when an employee is a ‘domestic servant’. The following factors may, however, be considered in deciding whether section 51 might apply:

Whether the employee works for the upkeep and maintenance of a domestic establishment and for the convenience and comfort of those living there 22. It has also been suggested that domestic service might involve quite skilled roles and might not be limited to “housework” 22.

The employee may be more likely to be a domestic servant if the employer is a member of the household or a private individual rather than, for example, a local authority or agency. The position might be complicated where the worker is employed directly by a private individual using money provided by a local authority. What duties exist will depend to a large extent on the facts of the case.

The work must be done at a private household, as opposed to premises such as a nursing or residential home. However, domestic servants need not live in the household where they work 23 and may be employed in more than one household. 24

Section 51 will not apply (and Part 1 HSWA therefore will) in relation to any additional work carried out by the employee that falls outside the ambit of domestic service in a private household.

Note 22 refers to Cameron v Royal London Ophthalmic Hospital [1941] 1 KB 350 a case under the Truck Act 1831, Section 20 of which disapplied application to "any domestic servant".

In the Cameron case, it was held that a stoker in the engineering department of a hospital who also helped the engineers with repairs was a domestic servant within the meaning of the 1831 Act.

If this decision was used as precedent in establishing what duties might be undertaken as regards defining a "domestic servant" for the purposes of HSWA, then possibly all the staff referred to your enquiry would fall within the definition.

It would then also be necessary to decide whether the premises are a "private household", which might not be the case if e.g. it is also a business e.g. castle doubling up as a visitor attraction.

So, there's my NEBOSHish answer.

Regards, Peter

Posted By Chris Taylor
I'm interested in Peter Gotch's post, particularly "where the worker is employed directly by a private individual using money provided by a local authority". This is the case for people using Direct Payments, a scheme whereby people get cash instead of services from their local auhority, and use that cash to employ someone to provide their care or support. Some of those people employ someone to support them solely in their home, some wholly outside their home, and some both. Are all, or some, or none of these employers exempted from HSWA under Section 51? Does anyone know, or are we guessing in the absence of case law?