PIB Insurance Brokers would like to highlight a poorly understood area of health and safety law, where Employment Agencies could find themselves being prosecuted. We are talking about the duty to report a workplace injury, where the injured person is an agency worker. What the HSE say on their website is intended to be helpful, but some may find it confusing:
“The employment status of agency workers is not always clear to the worker, or to the organisations who are supplied with labour. In many cases, the employment agency is the legal employer, and is under the same legal obligations as any other employer to report accidents and ill health to their employees. In other cases, for instance where workers are self-employed, the duty is on the host business to report accidents as the person in control of the premises where an accident occurs.”
Our colleagues from Sigerson Associates Limited recently found themselves in conversation with HSE. An agency worker had been injured, the injury had not been reported to HSE, but HSE had become aware. We were working for the host business and not the employment agency on this occasion.
The host business was not prosecuted; the HSE determined that it was the employment agency who had failed to make the report. It was the employment agency who had committed the offence.
If we had been working for the Employment Agency, we might have run a defence based on an argument that in all of the circumstances it was the host business who should have reported it, and we would have backed up the argument with evidence/reasons why. But why get in a fight after the event, when the outcome will be uncertain? Better to manage the risk. What do your contracts say on this point?
We asked PIB HR Consultant Andy Baxter for his advice. Andy says it’s all about teamwork, and getting on well with your host company customers.
“Under RIDDOR, the ‘responsible person’ has a duty of care to notify and report accidents. The HSE provide guidance on who should report an accident, and on determining the employment status of the injured person. My advice would be to ensure that if an individual is injured and they are Agency Labour, the host company needs to be encouraged to make every reasonable effort to ensure that you (if you are the ‘responsible person’ have all of the information you need, in good time, so that you can report the accident. In addition, I would advise you, as the ‘responsible person’ confirm to the host company that you have reported the accident.”
We also approached Andrew Cameron. He is Chief Legal Officer at Rradar Law, a law firm we at PIB Insurance Brokers work closely with because of their keen understanding of how the law interacts with insurance covers. Andrew took a practical line:
“The HSE acknowledges that with respect to RIDDOR, the employment status of agency workers may not always be clear to the employee, or to the organisations supplied with labour. Whilst in most cases, the employment agency may be the ‘legal employer’, and under the same obligations as any other employer to report accidents and ill health to their employees, it is most likely that it will be the organisation supplied with the labour who will be in control of the activity giving rise to the reportable incident and the appropriate organisation to report.
HSE guidance places the onus on the agency to ensure that reporting responsibilities are clearly understood by host businesses and the workers. It is however, essential that responsibility for reporting under RIDDOR is clearly assigned to the ‘appropriate’ person based on the facts of the employment relationship.”
Andrew is suggesting that the host company is better-placed to make that report. Perhaps you could formally agree that? But then you might want to build in some checks to ensure that they do?
Last word from Adrian Robinson, who heads up health and safety within Sigerson Associates Limited. Adrian wanted to point out that sometimes there are practical difficulties. How long has a person been off, have they returned to work or not, what happened? Don’t forget near misses (Dangerous Occurrences, the “..DO..” in RIDDOR) and also certain diseases/health conditions. The agency might not know.
What do you do? Do you manage this risk? Have you had any problems in this area? Do you have any practical tips to pass on? Gary Chambers would love to hear from you
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