Health and Safety Law - A Guide on Temporary, Casual and Agency Workers

Introduction

If an organisation like Royal Mail or BT uses agency workers, then managers in the organisation along with the Agency supplying the workers needs to be aware of the legal responsibilities for their health and safety. Agency workers can face particular problems because, for example, they may not be familiar with the business they are working in or its particular hazards and safe working practices. The risks must be controlled through effective co-operation between the employment agency business and the business hiring the workers, and by following best practice in areas such as risk assessment and communicating health and safety information, training and supervision, carefully assessing the capability and competence of the workers involved.

All workers are entitled to work in an environment where the risks to their health and safety are properly controlled. Temporary, Casual and Agency Workers health and safety is protected by law and the Employment Agency has a duty to make sure that the company where the Agency Worker is placed, follows the law.

The Agency has a responsibility not to place a worker in a job for which the person is not capable or appropriately qualified or trained for. The company where the Agency worker is placed is responsible for making sure that the workplace is a safe working environment and must provide appropriate health and safety training, information, instruction, supervision, Personal Protective Equipment and First Aid provisions etc.

The company employing Temporary, Casual or Agency staff has a legal duty to ensure those workers receive the necessary health and safety rights. Temporary, Casual and Agency workers have a right:

• · To work in places where all the risks to health and safety are properly controlled.
• · To stop working and leave the area if they are in danger.
• · To inform the employer about health and safety issues or concerns.
• · To contact HSE or the Local Authority EHO if you there are health and safety concerns and be protected from
   any victimisation or "whistleblowing".
• · To join a trade union and become a Union safety representative.
• · To paid time off work for training as a safety representative.
• · To a rest break of at least 20 minutes if working more than six hours at a stretch and to an annual period of
   paid leave.

All workers must in turn:

• · Take care of your their health and safety and not endanger others plus co-operate with the employers health
   and safety rules and not interfere or misuse, anything provided for health and safety purposes.

• The employer must tell Temporary, Casual and Agency workers:

• · About risks to health and safety from current or proposed working practices.
• · About things or changes that may harm or affect health and safety.
• · How to do the job safely and without risks.
• · What is done to protect individual's health and safety.
• · How to get first-aid treatment.
• . What to do in an emergency.

. What to do in an emergency.

The employer must provide, free of charge:

• · Training to do the job safely.
• · Protection for workers when necessary (such as clothing, shoes or boots, eye and ear protection,
   gloves, masks etc).
• · Health checks if there is a danger of ill health because of the work.
• · Regular health checks if night work is involved and a health check before staff start night work. 
• .If using a computer screen is a significant part of your job then you are entitled to a DSE (Display Screen
   Equipment) assessment to make sure you are using it correctly.
  
  The employer must provide Temporary, Casual and Agency workers with the following information:

• · Health and safety law - What staff should know. This should give the contact details of people who can help
   and advise.
• · The health and safety policy statement.
• · An up-to-date Employers' Liability (Compulsory Insurance) certificate visible in the place of work.
  
  What to do if Temporary, Casual and Agency workers are concerned about their health and safety:

• · Phone HSE's Infoline 08701 545500 for advice or to complain, or the TUC's Know Your Rights
   line 0870600 4882.
• · If Temporary, Casual and Agency workers are Migrant Workers who would like to speak to someone in a
   language more suitable they can call 08701 545500 and tell the operator which language.
• · If Temporary, Casual and Agency workers have lost your job because of a health and safety matter they may
   be able to complain to an Employment Tribunal with assistance from a trade union or the Citizens
   Advice Bureau.
   

Employers Health and Safety Duty of Care to Agency Workers

When a business uses agency workers, the business and the agency have a shared duty to protect the workers health and safety. Agency Workers can be considered as employees for health and safety purposes even if they are not for tax and National Insurance purposes. So agency workers might be employees of the agency, or employees of the business using them (in both cases, under a contract of employment), or (in some limited cases) self-employed/freelance. Whatever the case an employer of Temporary, Casual and Agency workers cannot transfer health and safety responsibilities to another person or business. However, even though employment status can be important, and the actual legal responsibility cannot be given to someone else, the most important thing is that both the user business and the agency have shared responsibilities and need to clarify and agree at the start of a contract the practical arrangements for day-to-day supervision, direction and control of the work agency workers will be
doing.

Health and safety risk assessment for agency workers

By law, businesses must ensure that they assess health and safety risks.

Businesses using agency workers

If agency workers are on site, either under the site owners direct employ or through another company, risk assessments must take them into account and any special problems they may face. For example, they will know less about the business working practices than ordinary full time, long term employees, and so could be at greater risk. Risk assessment must take into account any special cases such as pregnant women, people who work alone or people who may not speak English as a first language (Migrant Workers). Employers must also give the agency and agency workers information about risks and measures taken to control them before the start of the placement.

The Employment Agencies

Employment Agencies supplying workers to other businesses, have responsibilities to firstly ensure the user business has carried out an assessment, and given the Agency the findings, which should be passed on to agency workers. The Agency may also need to assess the risks workers face in the user business' workplace before placing workers with that business for the first time. If the user business doesn't volunteer the information needed, the Agency must decide whether to make a site visit to complete its own risk assessment. This is normally needed when providing workers for higher-risk industries such as construction, or where the risks are complex. If the Agency management isn't competent to do the assessment, they must arrange for someone else to do it for them. The Agency should also monitor user businesses' overall health and safety performance. For example, the Agency could ask them to provide copies of all accident and illness reports involving agency workers, together with an indication of the causes and what they have done to stop them happening again.

Co-operation and co-ordination to protect agency workers' health and safety

Responsibility for agency workers' health and safety is often shared regardless of where contractual obligations lie. The business using the workers, the employment agency and the workers themselves can all have responsibilities. Co-operation is an essential requirement. From the start, both the agency and user business is required by law to share information. For example, if the user business wants workers for a particular role, they should tell the agency about any risks to health and safety involved (e.g. Manual Handling/Musculoskeletal injury risks), and any special training or skills required to carry out the work safely. This will help the agency put forward people with the right training, capability and experience. Similarly, the agency should tell the user business about workers' skills and training, to help all concerned decide what additional training the workers may need. Sharing information with the workers themselves is also vital. Continuing co-operation throughout placements will help ensure that responsibilities are clear. It also allows everyone involved to co-ordinate health and safety activities such as giving information, instruction, training and supervision. Nobody should just assume that someone else is taking care of it or that they are not responsible because they are Temporary, Casual and Agency workers. The detail is best spelt out in contractual arrangements - bearing in mind that the legal responsibility as employers cannot be passed on. The effectiveness of health and safety arrangements should be regularly reviewed, identifying any problems, and taking steps to improve health and safety for the future.

Agency workers and health and safety information and training

Each new work placement poses health and safety risks. The Business using the workers and the agency must by law share information to ensure worker health and safety is properly protected. The hiring company will need to think in particular about what health and safety information, instruction and training agency workers need (whether the user business or the agency), and clarify who will provide it to meet the legal duties both parties have under the Management of Health and Safety at Work Regulations 1999. User businesses have a responsibility to give appropriate instructions and readily understandable information (both to the workers and the agency) about the risks agency workers may face when working in their business, about any special occupational skills or qualifications needed to do the work safely, and about health surveillance requirements. Agencies have the same duties if the workers are their employees. Additionally, the user business should tell the agency about any special features of the job that may affect agency workers' health and safety. The agency must pass this information on to the workers. Employers must check that workers have understood training once it's been given and are continuing to follow procedures correctly.

Consultation

Consultation with the workforce is key to bringing about improvements in health and safety. Involving workers in taking decisions about the ways that health and safety risks at work are controlled means that they will be more likely to work in a safe and healthy way. Whether its the business using agency workers or an agency, they are legally obliged to consult workers about health and safety if they are employees. It is good practice to consult workers who may not be employees where the placement is long term. Even when agency workers are not legally employees, the HSE state that it is good practice to consult and involve them.

Health and Safety equipment use and following procedures

Businesses using agency workers must ensure that the workers have the same level of health and safety protection as ordinary employees. For example, if user businesses provides employees with Personal Protective Equipment (PPE) such as protective clothing and footwear, agency workers will also need the same PPE if they are exposed to the same risks. Legal responsibility for providing this free of charge lies with whoever is the worker's employer - this might be the agency or the user business but workers cannot be charged for it. Similarly, agency workers who use computers and similar equipment with screens will need suitable workstations and rest breaks. The employer is responsible for paying for eye and eyesight tests. The more hazardous the work the business carries out, the more that needs to be done. There are specific requirements in relation to (for example) chemicals, the use of work equipment and machinery, manual handling, the use of electricity, and the comfort of the working environment. Businesses using agency workers and agencies themselves need to work together to ensure that the right equipment is provided and procedures are followed.

Monitoring Agency workers' health and safety

Depending on risk assessments, employers may need to carry out health checks on employees whether the user business or the agency. For example, this might need to be done if employees work with chemicals that can damage health. While health checks are not a substitute for controlling risks, they can help tell whether controls are working.

Health Checks

If the user business concludes that health checks are necessary, the HSE state that is good practice to include agency workers even if they are not direct employees. Arrangements should be co-ordinated with the agency to make sure that all parties are clear about who will provide it if it's required. Employers must give workers readily understandable information about these health checks, too, whether they're your employees or those of the agency.

The employment agency is responsible for the agency workers supplied if they are agency employees and the agency is responsible for any health checks needed. Before placing workers with a user business, the Agency needs to check with the user business whether they will be doing work that requires health checks. If so, the Agency will need to get information from the user business about what's involved. The Agency may be able to arrange for the user business to do the checks on the Agency's behalf - but the Agency is still responsible for making sure they are done if the workers are Agency employees. The Agency may also need to organise some health checks itself. For example, the Agency should arrange annual medical checkups for workers who are exposed to potentially serious health hazards, such as asbestos or radiation.

When accidents at work happen, it may be an agency worker who is injured or made ill. The user business and the agency should clarify with each other, before placement, who is the "responsible person" for any necessary RIDDOR (Reporting of Injuries, Diseases and Dangerous

Occurrences Regulations 1995) reports in respect of agency workers, and ensure that all relevant information is exchanged so that RIDDOR forms can be completed in full.

Control agency workers' working hours

The Working Time Regulations set limits on working hours. They also set out workers' entitlement to rest breaks and to holidays. Agency Workers are covered by the regulations. The worker's employer is responsible for complying with the regulations. Employers need to be careful.

There are special rules for young workers and night workers. Also, if workers work for more than one business, their total working hours could exceed the limit. Employers should make reasonable enquiries of agency workers about whether they are working elsewhere and take reasonable steps to ensure that their weekly average of 48 working hours is not exceeded unless opted out. Agencies that place workers with other businesses, are responsible for managing their working time. Agencies must work with the businesses using the workers to ensure that they provide the right rest breaks and other entitlements.

Yours Sincerely

Dave Joyce
National Health, Safety & Environment Officer