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holmezy  
#1 Posted : 04 February 2011 11:54:28(UTC)
Rank: Forum user
holmezy

Hi, I'm having an interested debate with my seniors re the supply of PPE to sub-contractors / self employed. We work in the construction industry, (albeit at the extreme edge) and have a a large team of installers who we employ on a self employed basis. The way the contracts of work are set up means they are only employed by us when they are allocated a job, so effectively on a day to day basis. We insist that they only work for us, and provide them with work every day, every week, every month etc. We also tell them what to do, how to do it, when to do it etc, provide them with a van, fuel etc, if they can have time off (unpaid) etc etc. We provide training on the installations and specific hazards ie asbestos, work at height, manual handling. We provide gloves and insist that the right ones are worn for specific tasks, we provide respirators and coveralls for "unlicensed) asbestos removal. We expect the s/e to provide their own safety shoes, googles and hard hats, even though it is our policy that they be worn. I am aware that the requirement is to treat self employed as employees for HS purposes and consider that due to the amount of control we have over our installers, they are in effect "employed" and we should provide all PPE. The "other side" argues that they are absolutely self employed and are the same as an electrician who is contracted to a building site to provide a short term service (re our daily contracts) and then goes and works for someone else, and therefore we should not be supplying PPE. I agree that they may be self employed for tax purposes, (although suspect that the taxman may argue otherwise) and this seems to be the basis if the "other sides" argument. I am aware of the "truly self employed" argument and consider us to not meet the requirements of this. Despite my best efforts, we have failed to agree!! Any opinions, guidance, examples, etc? Looking for practical advice, not the "leave now" sort as this aint an option at present!!! Plus I don't like conceeding when I know I'm right? Holmezy
stevie40  
#2 Posted : 04 February 2011 12:02:22(UTC)
Rank: Super forum user
stevie40

The answer is straightforward - you need to supply the PPE. The examples you have given show the difference between a Labour Only Subcontractor and a Bona Fide Subcontractor. Your chaps are LOSC - they are providing you with their labour. You are providing everything else, vehicles, materials, tools etc. You also have hire and fire capability and control the work orders. The electrician example is a BFSC - he is providing own materials and is free to work elsewhere. Any court in the land would view your set up and see the master / servant relationship and set the same standard as if they were direct employees. Their wage figures also need to be disclosed to your EL insurers as LOSC. EL premiums are based on wage figures and some firms have in the past used undeclared LOSC wages to hide the true size of the business and get a cheaper premium.
thanks 1 user thanked stevie40 for this useful post.
erporter on 09/04/2019(UTC)
PhilBeale  
#3 Posted : 04 February 2011 12:09:32(UTC)
Rank: Super forum user
PhilBeale

Slightly of topic but if you employed someone that solely works for you on a permanent basis then they are not self employed as you need to have more than one client to be self employed as i understand it from the HMRC point of view. Just a thought.
David Bannister  
#4 Posted : 04 February 2011 12:11:19(UTC)
Rank: Super forum user
David Bannister

Holmezy, if we look at this situation from a risk point of view, is it clear that the need for PPE arises from risk assessment, rather than a blanket imposition of "rules"? If so then there can be no argument as to whether it needs to be used/worn. It also becomes clear that the "employer" is obliged to provide at no cost to the user. The argument then rests on who is the employer in the particular circumstances of your operations. I suggest that if your installers are self-employed (as individuals) then you are most definitely the employer due to the reasons you listed: control of what, how, when, where etc. If however you have sub-contractors who are businesses in their own right the argument is less clear but should be dealt with by contract. If the subbies are expected to provide their own PPE it is reasonable to expect that this will be reflected in the costing of the job; either way you pay.
stevie40  
#5 Posted : 04 February 2011 12:11:49(UTC)
Rank: Super forum user
stevie40

Some info links to support your arguments. http://www.personneltoda...9/master-or-servant.html Mersey Docks and Harbour Board v Coggins and Griffiths
holmezy  
#6 Posted : 04 February 2011 12:32:18(UTC)
Rank: Forum user
holmezy

Chaps and Chappesses, I have absolutely no doubt as to what we should be doing and why, and thanks for the confirmation. The "other side" are now suggesting that we enter a clause in their contracts that makes PPE the s/e responsibility. The suggested clause then says that we will supply PPE, BUT back charge them for it! Nice easy examples of why this is sooooo wrong would be appreciated! The other side are trying to get legal advice on this, although I'm sure I'm right! The danger I see with asking for this advice, is that the legal people may just get the statement " there self employed, just like on a building site". Keep it coming chaps......I'm building the next offence / defence as we speak! Holmezy
stevie40  
#7 Posted : 04 February 2011 12:49:02(UTC)
Rank: Super forum user
stevie40

Ferguson v John Dawson & Partners (Contractors) Ltd [1976] IRLR 346 is referred to by the HSE on this page - http://www.hse.gov.uk/en...us-specific.htm#P21_3776 Quote "Labour-only subcontractors 12. 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. 13. In one case 14, a general labourer was engaged by a firm of builders and was expressly told that he was working as part of a "lump" labour force. He was paid an hourly rate without deductions for tax and national insurance, but was provided with tools and was subject to the day-to-day control of the site agent with regard to what to do and where to do it. The court held that the labourer was an employee of the building firm despite the express intention of the parties that he was to be a self-employed labour-only subcontractor. " Similar document on worker status on the HMRC site can be found here - http://www.hmrc.gov.uk/e...yment-status/index.htm#1
SteveL  
#8 Posted : 04 February 2011 13:54:05(UTC)
Rank: Super forum user
SteveL

I would say that they are employeed, we have the same trouble with using agency workers. But try this to help you to decide, http://www.direct.gov.uk...gAndPayingTax/DG_4015975
bob youel  
#9 Posted : 04 February 2011 15:34:52(UTC)
Rank: Super forum user
bob youel

As has already been said [if things are as U have said] these people are not self employed irrespective of what the 'other side' think and any contract paperwork that U may have is pretty useless ---- just ask the tax and national insurance people [which would open up a can of worms] even if U do not directly control the guys on a day to day basis -- if the national insurance people get involved it will cost your company far more that almost any HSE involvement So lets get up to date and supply the PPE [which I am sure that your Co has priced for in your bid & I bet that the 'other side' do not want to pass on the fees they have collected for the said PPE to the so called 'self employed ' lads
johnmurray  
#10 Posted : 04 February 2011 16:22:19(UTC)
Rank: Super forum user
johnmurray

If you supply your sub contractors, with ppe or anything else needed to do the job, you are going to have MAJOR problems in the future. To cut a long story short, your company will have to pay the tax and national insurance (employee and employer) as soon as HMRC and whichever other gov body is responsible for NI become aware of the [basically] lump-labour arrangement. It doesn't matter that the guys you "employ" are self-employed......as far as your company is concerned they just are not....obviously your company accountants are not too bright.... Not to mention that the "self-employed" are inevitably claiming for tools...fuel...protective equipment anyway..... Last guy I know of who got clobbered for that had to repay nearly 3K....the company got clobbered with a 4.5K bill...and that was in 1998.....and their "contractor" was the same as yours.....labour-only. If they are self employed THEY provide the equipment, which includes all tools, transport and PPE.
Canopener  
#11 Posted : 04 February 2011 19:29:46(UTC)
Rank: Super forum user
Canopener

At first sight I am inclined to agree with John Murray (now there's a first!). In general I suggest that a 'genuine' sub contractor would provide for their own kit, PPE etc. However, if the 'relationship' is close, for example you had direct control over their work activities, then they may be regarded as employees for some aspects of health and safety provision, and I suppose that may include PPE. There was a recent thread of training for sub contractors that threw up some interesting points that may be relevant to your post and has some case law as well. I'm sorry but I can't recall the name of the thread though, sorry.
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