Temporary Workers and The Law
Employers may use temporary workers in one of two ways, for example:
- Taking on new staff employed directly on temporary contracts
- Using agencies who supply their workers on a temporary basis.
Temporary workers in the first category should be regarded as employees and therefore be treated like any other member of staff under health and safety legislation. However, temporary workers provided by an agency are not considered employees of the host employer. This was confirmed by the Court of Appeal in the case of James v London Borough of Greenwich (2008).
There are particular risks associated with the use of temporary workers as a result of their unfamiliarity with the workplace. Employers are required to assess and minimise these risks.
- Employers have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees and non-employees under the Health and Safety at Work, etc Act 1974. This includes any temporary workers on the premises, whether they are considered to be employees or not.
- Under the Management of Health and Safety at Work Regulations 1999, employers should:
– consider temporary workers within the company risk assessments
– set up suitable and sufficient arrangements to protect the health and safety of people at work, including temporary workers
– provide information to temporary workers on risks and control measures
– give details of procedures, site rules, safe systems of work, etc
– provide details of any health surveillance required
– give information on what qualifications and skills the temporary worker must have to undertake the proposed work safely.
- If a temporary worker has an accident while working for a host employer, the host employer should notify the worker’s employer as soon as possible, under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.
- Under the Personal Protective Equipment at Work Regulations 1992, the duty to provide personal protective equipment (PPE) to employees does not extend to temporary workers employed by an agency. The employment agency is responsible for ensuring any necessary PPE is provided.
- It is the host employer’s responsibility to conduct display screen equipment assessments under the Health and Safety (Display Screen Equipment) Regulations 1992, and to implement any necessary control measure to ensure the safe use of DSE.
- Under the Health and Safety Information for Employees Regulations 1989, the host employer is responsible for informing temporary workers or self-employed contractors:
– of the risks involved with the work and any control measures
– that they must provide PPE (if the host employer decides to provide the PPE, then that employer is responsible for ensuring it is suitable and maintained in effective working order)
– of the exact nature, purpose and location (if known) of the work
– of specific site details
– about any equipment provision
– of the emergency action procedures
– of any (technical) language expectations.
- Under the Employers’ Liability (Compulsory Insurance) Act 1969, organisations should provide cover for all workers where the following conditions apply:
– the employer deducts national insurance and income tax from the money paid to the workers
– the employer has the right to control where and when they work and how they do it
– the employer supplies their work materials and equipment
– the employer has a right to any profit made by the workers, although the employer may choose to share this with the workers through commission, performance pay or shares in the company
– the employer requires that only the specific worker can deliver the service and they cannot employ a substitute if they are unable to do the work
– the workers are treated in the same way as other employees, for example, they do the same work under the same conditions as someone else employed by the organisation.
- Under the Health and Safety at Work, etc Act 1974, employees have a duty to take reasonable care of their own health and safety and that of other people who may be affected by their activities while at work.
- Employees, irrespective of permanent or temporary status, also have a duty to co-operate with their employer to enable the employer to meet their health and safety responsibilities.
- Nobody, including temporary workers, should interfere or misuse anything intended for use in the interests of health and safety.
Risk Assessment of Temporary Workers
Employers must carry out a risk assessment of the risks posed by the work activities of temporary workers. These assessments should include the risks to temporary workers on-site who may be affected by the employers’ work activities.
The starting point is to identify all possible activities and operations undertaken by temporary workers. Consulting previous temporary workers and other employees can help with the assessment. It will also be useful to consider the organisation’s general risk assessments when evaluating the risk associated with temporary staff. It should always be remembered when evaluating the risks and considering the appropriate control measures that temporary workers may be unfamiliar with workplace hazards and are therefore at greater risk.
Risk assessments must be supplied to all workers of:
- The client organisation
- The employer of a temporary worker
- A self-employed person.
It is preferable for the temporary worker to supply, and thus be responsible for, the safety of all of their own equipment. However, on many occasions equipment may well be supplied – or as often happens – borrowed on an ad hoc basis. In these circumstances the client organisation becomes the “supplier” of the equipment and must comply with the requirements of the Provision and Use of Work Equipment Regulations 1998, including ensuring that sufficient information is supplied to allow the safe operation of the equipment.
Each organisation must inform the other of the risks (and control means) inherent to their work that will affect other parties.
In some instances, it may not initially be clear which particular aspects of each organisation’s work will affect the other. It is therefore necessary not to take the supplied risk assessments on face value. They must be considered in the context of the risk known to each party. Some of this information will become apparent when the means by which the temporary worker intends to carry out the work – most often given in a “method statement”. It may become apparent that a risk previously considered insignificant may become serious and need special controls. This is only likely to become apparent during consultation between the parties.
In 2011 both an employment agency and a host employer were fined following an incident where four agency workers fell 3.5m while working at a vegetable processing and packaging site. They were asked to remove the insulation panels from one of the cold stores, which had previously been destroyed by a fire, in the hope that they could be reused, but were given no guidance on how to carry out the job. There was also no risk assessment or supervision provided.
The employment agency was fined £5,000 under section 2(1) and the host employer was fined £15,000 under section 3(1) of the Health and Safety at Work, etc Act 1974.