AGENCY WORKERS REGULATIONS 2010 - Health and Safety Law Update

AGENCY WORKERS' HEALTH AND SAFETY

Agency workers are particularly vulnerable to health and safety risks because they may not be as familiar with the business they are working in or its particular hazards as direct employees. Accordingly, it is important that employment agencies and businesses using agency workers alike are fully aware of their health and safety duties owed towards such workers.

Under general health and safety law, employers and self-employed persons owe health and safety duties in respect of persons not in their employment (section 3 Health and Safety at Work Act 1974 ("HSWA")), in addition to the health and safety duties which employers owe to their employees (section 2 HSWA). Therefore, where a business uses agency workers, both the business and the agency have a shared duty to protect agency workers' health and safety. In addition to these shared duties, some specific health and safety responsibilities are framed in terms of "employer" and "employee" and it is therefore important to establish the employment status of the agency worker. There are a number of possible arrangements for agency workers which will depend on the circumstances of each individual case. For example, the worker may be self employed, the worker may be an employee of the agency, or the worker may be an employee of the company. There is substantial case law on the factors that point towards a relationship of employment between the business and the worker or between the agency and the worker.

Such factors include:

the specific provisions within the contract of employment; the party who pays the agency worker; and which party exercises the...