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 day to day control over the agency worker. THE AGENCY WORKERS REGULATIONS 2010

It is important for businesses to properly understand their duties in relation to agency workers' health and safety, either in their capacity as an employer or under their general obligations in relation to all workers. Part of this assessment should include an understanding of the new rules under The Agency Workers Regulations 2010 ("Regulations") which will give certain agency workers equal rights to their non-agency worker colleagues. As background, the Regulations have been adopted to implement the Temporary Agency Workers Directive 2008/104/EC ("Directive"). The Directive was designed to ensure that the principle of equal treatment is applied to agency workers as it is to those workers directly employed and is intended to address...