Health and safety (temp workers)
All businesses must ensure the health and safety of their employees, workers and visitors to their premises. Health and safety covers a range of matters from accident reporting, storage of chemicals, the provision of personal protective equipment or workwear, working hours and conditions, use of computer equipment, risk assessments and training. This section will look at health and safety in relation to temporary workers.
New obligations on Employment Businesses to supply PPE to workers from April 2022
In the summer of 2021, the Health & Safety Executive (HSE) held a public consultation on the amendments they are seeking to make to the Personal Protective Equipment at Work Regulations 1992 (PPE Regulations).
Currently, the PPE Regulations, places duties on employers in Great Britain to provide limb (a) workers (employees), which under the Employment Rights Act 1996 (ERA), means "an individual who has entered into or works under a contract of employment", with suitable personal protective equipment (PPE), when working in roles that may expose them to health and safety risks.
In November 2020, a court judgement found that the duties on employers to provide suitable PPE to employees should be extended to limb (b) workers, who typically are workers who:
· carry out casual or irregular work for one or a number of organisation(s);
· receive holiday pay, but not other employment rights such as the minimum period of statutory notice, after one month of continuous service;
· only carry out work if they choose to;
· have a contract or other arrangement to do work or services personally for a reward (the contract doesn’t have to be written) and they only have a limited right to send someone else to do the work, for example, swapping shifts with someone on a pre-approved list (subcontract); and
· are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly).
This means that agency workers on a contract for services will fall within scope of the revised PPE Regulations and employment businesses who supply these workers to their clients, will be required to provide them with the necessary PPE, should they work in an environment that exposes them to health and safety risks.
Employment businesses will:
· be required to provide the PPE free of charge;
· be responsible for maintaining, storing, and replacing any PPE that is provided to its workers; and
· be required to train them and instruct them on how to use the PPE.
The HSE have confirmed that changes to the PPE Regulations will come into force on 6 April 2022.
For further information, please see the following:
Are my temporary workers legally required to wear face coverings when they work for my clients?
The Government announced on 28 November 2021, that from 30 Novemeber 2021, unless and individual is exempt, face coverings will be mandatory on public transport, in banks, post offices and hairdressers, to prevent the spread of the Covid-19 variant (Omicron).
Offices have not been included in this announcement, so it will not be a legal requirement for your temporary workers to wear a face covering unless they visit or will be working at any of the above places.
If however, your client makes it a health and safety requirement for your temporary workers to wear a face covering whilst working on their site, then they may be obliged to do so. Please refer to FAQ: My client will not allow one of my temporary workers to work on an assignment because they refuse to wear a face covering. Can my client do this? Could this be classed as discrimination? for further information).
My client will not allow one of my temporary workers to work on an assignment because they refuse to wear a face covering. Can my client do this? Could this be classed as discrimination?
In a general sense, as there is no contractual relationship nor mutuality of obligation between your client(s) and the temporary workers that you supply, your client is not obliged to give your temporary workers assignments, and they have a right to end an assignment, where they see fit. This would apply in situations where they require all temporary workers to wear a face covering and a temporary worker is refusing to do so.
To expand, your client can make it a pre-requisite/requisite for all of their staff, including your temporary workers to wear a face covering whilst on site after carrying out an assessment and considering any other appropriate mitigations. This also means that you would be required to comply with this requirement, because under Regulation 19 of the Conduct of Employment Agencies and Employment Businesses Regulations, it states that you cannot supply a temporary worker to a client, unless you have "obtained confirmation that the work seeker has the experience, training, qualifications, and any authorisation which the hirer considers are necessary, or which are required by law or by any professional body to work in the position which the hirer seeks to fill."
In this case, your client(s) can prohibit any temporary workers from working on an assignment if they refuse to wear one.
However, if a temporary worker’s reason for not wearing a face covering is because of a protected characterstic under the Equality Act 2010 (the Act), e.g because of a religious belief or due to a disability under the Act, then your client(s) will run the high risk of a discrimination claim being made against them - unless they can objectively justify their decision. You should ask your clients to carry out a risk assessment or provide reasons for why they cannot accept temporary workers who will not wear a face covering.
In cases where a temporary worker cannot wear a face covering due to a disability under the Act, your client will need to consider their legal duty to make reasonable adjustments. Failure to do so, could amount to disability discrimination and it is possible for a discrimination claim to be issued against them. Your client will also need to think about how much of a risk it would be for one person to not wear a face covering whilst working with other staff members and members of the public who will be wearing one.
You may also wish to consider discussing some other alternatives with your client, for example, clear visor type face coverings which are less restrictive than the standard face coverings.
Reporting accidents and incidents at work. What is RIDDOR?
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) is legislation which obliges employers as well as other people who are in control of work premises, to report certain accidents at work to enforcing authorities such as the Health and Safety Executive (HSE), local authorities and the Office for Rail Regulation.
For further information on RIDDOR, please see the HSE: Reporting accidents and incidents at work guidance.
My temporary worker has had an accident on my client's site. Does it need to be reported and who should do the reporting?
For the purposes of RIDDOR, not all incidents must be reported. Reporting is required if the accident is:
- work related; and
- falls into the category of reportable injuries.
Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), the list of specified injuries under Regulation 4 include:
- a fracture, other than to fingers, thumbs and toes;
- amputation of an arm, hand, finger, thumb, leg, foot or toe;
- permanent loss of sight or reduction of sight;
- crush injuries leading to internal organ damage;
- serious burns (covering more than 10% of the body, or damaging the eyes,
- respiratory system or other vital organs);
- scalpings (separation of skin from the head) which require hospital treatment;
- unconsciousness caused by head injury or asphyxia;
- any other injury arising from working in an enclosed space, which leads to
- hypothermia, heat-induced illness or requires resuscitation or admittance to
- hospital for more than 24 hours.
Other incidents to be reported are:
- deaths
- injuries to a worker, which results in them being away from work/unable to carry out their normal working duties for over seven consecutive days.
Who should report?
The regulations state that the 'responsible person' must do the reporting and follow the reporting procedure.
In the regulations, the responsible person is defined as:
a) The employee’s employer; or
b) a person not at work or a self-employed person, or in relation to any other dangerous occurrence, the person who by means of their carrying on any undertaking was in control of the premises where the reportable or recordable incident happened, at the time it happened.
The responsible person must also:
1) notify the relevant enforcing authority of the reportable incident by the quickest practicable means without delay; and
2) (b) send a report of that incident in an approved manner to the relevant enforcing authority within 10 days of the incident .
Under the overseeing legislation (the Health and Safety at Work etc Act 1974) an employee is an individual who works under a contract of employment. Any other persons fall under the self-employed provisions for RIDDOR purposes. Thus if an employment business supplies a temporary worker to a client, and that temporary worker is engaged on a Contract of Employment, the employment business is deemed to be the employer and thus will be the responsible person for the purposes of RIDDOR.
If a temporary worker is engaged on a Contract for Services and is a ‘worker’ rather than an employee, on the face of it, the employee provisions will not apply, and the responsible person - with the obligation to report would be the client, being the person who was in control of the premises.The same principle should apply for a self-employed person who has had a reportable accident, whilst working on the client's premises.
An employment business will therefore need to ensure that an incident has been reported by its client. Alternatively, the employment business could report the incident on its clients behalf.
As seen above, the category of ‘worker’ is not specifically addressed by the legislation. However it is clear that the Health and Safety Executive who are responsible for enforcing the legislation expect employment businesses and clients to co-operate to ensure that the health and safety of agency workers is protected. Thus employment businesses should work with its clients to ensure that incidents are reported. The HSE acknowledges that the status of agency workers is not always clear and has addressed this in their guidance on who should report. They have also acknowledged this elsewhere on their website in a section addressing the different types of worker.
Whose health and safety do I have to manage?
The Management of Health & Safety at Work Regulations 1999 (MHSWR 1999) set out in detail the obligations on employers and the self-employed in terms of managing health and safety. Employers have a legal responsibility to protect the health and safety of their employees as well as other people, such as work-seekers and clients, who may be affected by their work.
In general, employers must:
- make the workplace safe and eliminate or control risks to health;
- ensure plant and machinery are safe and that safe systems of work are set and followed;
- ensure articles and substances are moved, stored and used safely;
- provide adequate welfare facilities;
- give workers the information, instruction, training and supervision necessary for their health and safety;
- consult workers on health and safety matters.
Further guidance on managing health and safety can be found on the Health and Safety Executive’s website.
Supplying work-seekers to clients
Under the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Conduct Regulations), as well as under general health and safety law, employment agencies and employment businesses have certain obligations to ensure a work-seeker’s health and safety.
Information to obtain from the client before supplying a work seeker
The Conduct Regulations require employment agencies and employment businesses to obtain certain health and safety information from their clients prior to introducing or supplying work-seekers to the client.
Under Regulation 18, employment agencies and employment businesses may not introduce or supply a work-seeker unless they obtain sufficient information from the client to select a suitable worker for the position which the client wishes to fill. Information that an agency or employment business must obtain under Regulation 18 includes information on the position including the type of work the work-seeker would be required to perform, the location, hours and any risks to health and safety known to the client and what steps the client has taken to prevent or control those risks.
An employment agency and an employment business must also obtain information on the experience, qualifications and any authorisation which the client considers necessary (or are required by law or professional body) for a work-seeker to possess in order to work in the position. By doing this they will be in a position to select a suitably qualified individual to undertake the role. When offering a position to a work-seeker with a client, an agency or employment business is required to give the work-seeker all the information obtained under Regulation 18 including:
- the information regarding risks to health and safety
- information regarding the steps the client has taken to address those risks
- the skills and qualifications required to perform the role.
Under Regulation 21, this information must be given when offering the position to the work-seeker (before the start of the assignment) and must be confirmed in writing (whether in paper form or electronic means) within three working days after the date when the position was offered. Employment businesses can provide this information to their temporary workers via the REC assignment details form.
If the employment agency or business does not obtain sufficient or satisfactory health and safety information from the client, it must not supply the worker to that client. Alternatively, where practicable the employment agency or business may wish to conduct its own risk assessment on the client.
Information to obtain from the work-seeker
Employment Businesses
Conduct Regulation 19 states that employment businesses should only supply a suitable temporary worker whom they are satisfied is competent to undertake the work concerned. Conduct Regulation 19 requires the employment business to obtain confirmation that the temporary worker has the experience, training, qualifications (and any other authorisation considered necessary or required by law or professional body) to work in the position and that the hirer seeks to fill. The employment business needs to ask the following questions (additional questions may be required for specific roles):
- what qualifications and skills the work-seeker has;
- what experience they have in the proposed role;
- what specific training has the work-seeker completed (and take copies from the originals of any relevant certificates and qualifications);
- what additional training the work-seeker might require;
- what industry accreditation the work-seeker possesses;
- whether the work-seeker is a member of a relevant trade body, professional or statutory body; and
- whether, having discussed the role and any health and safety issues with the work-seeker, that the work-seeker is confident that they can perform the job safely.
Employment Agencies
Regulation 19 does not require employment agencies to obtain confirmation that their permanent candidates have the experience, training and qualifications (and any other authorisation considered necessary or required by law or professional body) to work in the position that the hirer seeks to fill, unless the position involves working with vulnerable people. However if an agency introduces or supplies unskilled or unqualified candidates (where a particular skill or qualification is required), then this may affect the agency’s reputation with the client.
Where an employment agency is supplying permanent candidates into a position which involves working with, caring for or attending a vulnerable person then they must obtain confirmation that the candidates have the experience, training and qualifications (and any other authorisation considered necessary or required by law or professional body) to work in the position, the agency should do this before introducing or supplying the candidate to the client.
The definition of ‘vulnerable person’ can be found here.
Conduct Regulations: Summary of steps for the employment agency/ business
In order to meet its own legal obligations with regards to health and safety, an employment agency or business must:
- ask the client about any risks to health and safety known to the client and what steps the client has taken to prevent or control such risks;
- liaise with the client to rectify any identifiable health and safety risks;
- inform the work-seekers of any health and safety risks and what arrangements the client has in place to prevent or control those risks;
- ensure that the work-seeker is competent to undertake the work concerned; and
- regularly review clients’ health and safety arrangements.
After supplying a temporary worker to the client
In addition to an employment business’ obligations under the Conduct of Employment Agencies and Employment Businesses Regulations 2003, further wide-ranging obligations are owed to temporary workers under general health and safety legislation. In particular under the Management of Health & Safety at Work Regulations 1999, the client and the employment business have joint responsibility when it comes to coordinating a temporary worker’s health and safety.
An employment business must therefore ensure close liaison and co-operation with the client to ensure the health and safety of temporary workers is adequately protected.
However, an employment business will have limited access (if any) to a client’s site, therefore it is important to ensure that your terms of business with the client clearly illustrate who is responsible for what in relation to the health and safety of workers supplied by the employment business to the client. This will be particularly important in the construction, manufacturing and industrial sectors where plant and machinery are used.
For example, please see REC Contract 3: Terms of Business with a Hirer for the Supply of Agency Workers
(clauses 3.1.4 and 14 clearly illustrate the client’s health and safety contractual responsibilities). If members are asked to sign a health and safety indemnity by the client, they should:
- ensure the clause is reasonable;
- check with their insurance provider to ensure that the clause is insurable;
- ensure they are not indemnifying the client against the client’s own health and safety responsibilities.
Duties owed by temporary workers
All persons working on a client’s site have a duty to assess any risks to their own health and safety and to comply with any of the client’s health and safety instructions that they are made aware of. They should take all reasonable steps to safeguard their own safety and that of any person who may be affected by their actions. They must also report any accident to the client in the first instance and preferably also to their employment business.
Risk assessments
Under the Management of Health & Safety at Work Regulations 1999 employers must carry out an assessment of the health and safety risks associated with their business to identify any measures necessary to control those risks, remembering that under health and safety legislation the term ‘employer’ includes clients and employment businesses. Employment businesses should therefore ensure that the client carries out a risk assessment, which is suitable and sufficient for the particular business and the client’s various sites.
The Health and Safety Executive (HSE) has produced useful guidance on how to conduct risk assessments. They have set out five steps to risk assessment:
- identify the hazards;
- decide who might be harmed and how;
- evaluate the risks and decide on precaution;
- record the findings and implement them; and
- review the assessment and update if necessary.
Detailed guidance on the five steps is available on the HSE website.
Importantly, the risk assessment should consider any temporary workers who may work on site, particularly as s/he will be unfamiliar with the plant, machinery and layout of the client’s site(s).
A temporary worker’s responsibility towards their own risk assessment
Temporary workers must also work in a safe manner and not put themselves or any other person at risk of harm. Temporary workers must also understand that they have a responsibility to carry out their own risk assessment of their activities to identify any significant hazards under their control likely to affect themselves or others. However neither the employment business nor the client should consider this as absolving them from their respective obligations towards a temporary worker’s health and safety while they are on assignment.
Employment businesses should ensure their terms of engagement with temporary workers contains a term whereby temporary workers should take all reasonable steps to safeguard their own health and safety. Corporate members can see an example of this in clause 4.1.3 of REC Contract 4: Terms of Engagement for Agency Workers (Contract for Services).
Do I have to obtain a risk assessment from the client?
It is doubtful that an agency or employment business is always required to obtain copies of a client’s risk assessments to fulfill their obligations. However employment businesses and agencies must ask what the risks to health and safety are. When considering what health and safety information to ask for, recruiters should bear in mind both the sector and the specific position they are recruiting into and tailor their questions accordingly (the HSE can provide guidance in this regard). Such questions may include whether the position involves heavy lifting, working at a height, toxic substances which may be on site, the hours spent in front of a visual display unit, whether the client provides personal protective equipment and what training or induction is required.
Where workers are supplied into regulated or licensed sectors, such as the Gangmasters Licensing Authority (GLA) and the Care Quality Commission, the regulatory or licensing body may have specific health and safety requirements. For example, in agriculture, shell fishing or the food processing or packaging industries, the GLA will insist that the employment business has a copy of the client’s risk assessment as part of the Licensing Standards to be met before a GLA licence is granted. Please see GLA Licensing Standard 6.
It is considered best practice for an employment business to periodically monitor a client’s health and safety policies, risk assessments and performance i.e. by analysing accident books and ill health reports.
HSE provide detailed guidance on all aspects of health and safety. They can provide sample risk assessments as well as guidance on how to fill them out.
A written health and safety policy
As a matter of health and safety law, those who employ at least five people must prepare a written statement of their general policy on health and safety at work and such policy must be brought to the attention of their employees. For organisations with less than five people, it is not a legal requirement to have a written health and safety policy but it is best practice to do so.
Employment businesses supplying temporary workers should ask their clients for a copy of any relevant risk assessments and their health and safety policy. They should also confirm that the client will give the temporary worker a health and safety induction on the first day of their assignment.
- The REC Model Health and Safety Policy for use in your own business
Pregnant workers and new mothers
Employment businesses and clients must ensure that new and expectant mothers are safe in the workplace and that they are not exposed to harmful risks. It is advisable therefore that employment businesses work closely with clients to ensure that each of them complies with their own statutory responsibilities and that a new or expectant mother working on a client’s site works safely.
All businesses who employ or engage women of childbearing age should conduct appropriate risk assessments to ensure that there are no workplace risks which could do harm to either an expectant mother or her unborn child, or new mothers (a new mother is a mother who is breast-feeding or within 6 months of giving birth). They should make the results of the risk assessment available to the workforce and not just those who are pregnant or have recently given birth. Once a client is aware that a temporary worker is pregnant, or is a new mother, it then has a duty to make a further assessment of the workplace risks to that worker. Risks will vary depending on industry sector and the client’s site but could include:
- lifting or carrying heavy loads;
- standing or sitting for long periods;
- exposure to toxic substances; or
- working long hours.
Having done the risk assessment, the client should then take steps to avoid any risks identified by altering working conditions or hours of work. Where such risks cannot be avoided (for example due to the nature of the role) then the assignment can be terminated. If the worker’s assignment is terminated on health and safety grounds, the employment business can look for other more suitable work for the pregnant worker (i.e. work that does not have the same health and safety risks), although there is no obligation to do so unless the worker has completed the 12 week qualifying period under the Agency Workers Regulations 2010 (see below).
Pregnant agency workers under the Agency Workers Regulations 2010:
The Agency Workers Regulations 2010 which came into effect on 1 October 2011 give pregnant agency workers, who have completed the 12 week qualifying period, 2 new pregnancy related rights. These are:
- the right to take paid time off to attend ante-natal appointments; and
- the right to be offered suitable alternative work when an assignment has been terminated on health and safety grounds related to pregnancy. An alternative suitable assignment will be one which is free of the health and safety risks which caused the original assignment to be terminated and which involves work which is appropriate for the agency worker to do in her circumstances. If alternative work cannot be found, then the pregnant woman will have the right to be paid by the employment business for the remaining expected duration (or likely duration) of the original assignment.
For full details of these new rights please read REC Factsheet 6: Maternity rights under the Agency Workers Regulations (Oct 2012).
Importantly, if the agency worker is employed by the employment business (as opposed to working on a contract for services) the employment business as the employer, must comply with all the statutory obligations in relation to that agency worker as an employee. In this instance, she will continue to have the benefit of the current employee right to take paid time off for ante-natal appointments and will not therefore need to complete the 12 week AWR qualifying period.
The Health and Safety Executive provide detailed guidance on health and safety for pregnant workers, please see the HSE website for further information.
Young workers
"Young workers" are work-seekers under the age of 18 but over the minimum school leaving age (i.e. they are aged 16-17 years old).
Employment businesses and clients must take particular account of the inexperience, lack of awareness and immaturity of young people in the work place. It is imperative that the employment business and client work closely with each other to ensure they meet their respective statutory responsibilities and that a young temporary worker works safely.
The Management of Health & Safety at Work Regulations 1999 (MHSWR) states that risk assessments for young people must be made before they start work, taking into account the following:
- the inexperience, lack of awareness of risks and immaturity of young persons;
- the fitting-out and layout of the workplace and the workstation;
- the nature, degree and duration of exposure to physical, biological and chemical agents;
- the form, range and use of work equipment and the way it is handled;
- the organisation of processes and activities;
- the extent of health and safety training provided or to be provided to young persons; and
- risks from agents, processes and work listed in the Annex to Council Directive 94/33/EC on the protection of young people at work. Some examples listed in the Annex include working with physical, biological and chemical agents as well as working with electrical hazards, gasses and objects containing explosives. The complete Annex can be found here.
In the case of young persons who are supplied as temporary workers, employment businesses should obtain and receive from the client sufficient information regarding any specific features of the work, which may affect health and safety and steps the client has taken to address such risks and pass this on to the worker.
Prohibited work for young people
Certain types of work are prohibited for young persons unless:
- it is necessary for their training;
- they are supervised by a competent person; and
- any identified risk is reduced to the lowest level that is reasonably practicable.
The prohibited types of work are:
- work which is beyond their physical or psychological capacity;
- work involving harmful exposure to agents which are toxic or can cause cancer, heritable genetic damage or harm to an unborn child or which in any other way chronically affect human health;
- work involving harmful exposure to radiation;
- work involving the risk of accidents which it may reasonably be assumed cannot be recognised or avoided by young persons owing to their insufficient attention to safety or lack of experience or training; or
- work in which there is a risk to health from:
- extreme cold or heat;
- noise; or
- vibration.
Further information
Information and Training
Employment agencies and businesses must obtain health and safety information from clients before they supply any work-seekers to that client. In addition, employment agencies and businesses must satisfy themselves that the individual work-seeker is competent to carry out the work concerned.
When temporary workers are given tasks or assignments, particular attention must be paid as to whether they are capable (as regards health and safety) of performing them. Temporary workers must be provided with adequate health and safety training to perform the assigned tasks, this training must be repeated where appropriate. Where temporary workers require workplace training, then both the client and employment business have a duty to ensure that this is carried out before the temporary worker starts work. They must clarify who will provide the training (whether the employment business, the client or even a third party) and who will pay for it. This must be communicated to the temporary worker.
Once trained, temporary workers must only use equipment in accordance with the training they have received and must inform the client if any situation presents an imminent risk, or where there are any shortcomings in the client’s arrangements to reduce or control such risks.
It should be remembered that temporary workers will generally be unfamiliar with the activities, layout of the building, emergency procedures, policies and rules etc. Therefore, it would be prudent for an employment business to issue temporary workers with such information in writing (simple guidelines on what is expected from them, rules they must abide by/follow etc.). Guidance from the Health and Safety Executive states that all workers should be given information on:
- any hazards and risks they may potentially face;
- measures in place to deal with those hazards and risks;
- how to follow any emergency procedures.
The full guidance can be found here.
Clients and employment businesses should have procedures in place to keep temporary workers up to date if there are changes to working procedures or equipment.
The Health and Safety Executive provide detailed guidance on all aspects of health and safety. For more information on training please see the HSE website.
How can we control possible workplace risks?
Below is a list of the most common health and safety issues. We will deal with each one in turn.
- Use of display screen equipment;
- Hazardous substances – COSHH;
- Working hours;
- Manual handling;
- Fire;
- Smoking at work;
- Alcohol and drug misuse;
- Stress;
- Bullying and harassment.
1. Display Screen Equipment
The Health and Safety (Display Screen Equipment) Regulations 1992 (DSE Regulations) use the terms “user” to mean an employee and “operator” to mean a self-employed person. Responsibility for the health and safety of temporary workers/employed agency workers is shared between the employment business and the client. Where each party’s responsibility starts and ends will depend on the type of work the individual is doing.
The DSE Regulations require employment businesses and clients to work together to minimise the risks to temporary workers working with visual display units (VDU) such as computer and television screens. The DSE Regulations require employment businesses to:
- ensure workplaces and jobs are well designed;
- analyse workstations to assess and reduce risks;
- ensure workstations meet specified minimum requirements;
- plan work activities so that they include breaks or changes of activity;
- provide eye and eyesight tests on request, and prescription glasses if needed; and
- provide information and training.
Who do the DSE Regulations apply to?
The DSE Regulations apply to workers who habitually use VDUs as a significant part of their normal work. Other people, who use VDUs only occasionally, are only covered by the workstation requirement.
Do the DSE Regulations apply to the self-employed?
The DSE Regulations do not place any duty on self-employed persons, except where the self-employed person habitually uses a VDU for a significant part of his/her normal work and uses a client’s workstation. The client has to assess and reduce risks, ensure the workstation complies with the minimum requirements and provide information as if the self-employed person were one of their employees. But there is no requirement for clients to plan work breaks, or provide eye tests or training for the self-employed.
- The REC legal guide to IR35 and being genuinely self-employed
Do the DSE Regulations apply to homeworkers?
Yes, the DSE Regulations apply to workers working from home and who regularly use a VDU for a significant part of their normal work. Similarly, workstations at home fall within the scope of the DSE Regulations regardless of who owns the equipment and furniture.
How do you comply with the DSE Regulations?
The DSE Regulations do not contain detailed technical specifications or lists of approved equipment. Instead, they set out more general objectives. Employment businesses should ensure that the client:
- Analyses workstations, and assesses and reduces risks.
In particular the client should look at:
- the whole workstation including equipment, furniture, and the work environment;
- the job being done; and
- any special needs of individual workers.
Workers and safety representatives should be encouraged to take part in risk assessments, e.g. by reporting health problems. Where risks are identified, the employment business should ensure that the client takes steps to reduce those risks. - Ensure workstations meet minimum requirements:
These requirements include features that should normally be found in a workstation, such as adjustable chairs, adequate space and suitable lighting. They are set out in the schedule to the DSE Regulations and include screens, keyboards, desks, chairs, the work environment and software. - Plan work so there are regular breaks or changes of activity:
As the need for breaks depends on the nature and intensity of the work, the DSE Regulations require breaks or changes of activity but do not specify their timing or length. However the guidance on the DSE Regulations explains general principles, for example short, frequent breaks are better than longer, less frequent ones. Ideally the individual should have some discretion over when to take breaks. - On request, arrange eye tests and provide glasses if special ones are needed:
Under the DSE Regulations a ‘user’ should have their eye sight tests paid for by their employer. The term ‘user’ is defined as “an employee who habitually uses display screen equipment as a significant part of his normal work;” Temporary workers engaged under contracts for services (rather than contracts of employment), are therefore typically responsible for their own eye tests as they are not employees. That said, each case should be decided on its own merits.
If, during the course of the assignment, the client has treated a temporary worker like one of their own employees then this may have impacted upon the temporary worker’s employment status. Only an Employment Tribunal can determine employment status but it should be noted that length of time in an assignment alone does not mean that a temporary worker has become an employee of the client. Where a temporary worker has become an employee, he or she could then fall within the definition of ‘user’ and should have their eye sight tests paid for (provided they routinely use a VDU in their work).
Where there is a possibility that the temporary worker has become a ‘user,’ it may be prudent for the client and the employment business to come to an agreement and make a contribution towards eye tests and any corrective equipment (making it clear to the temporary worker that there is no legal obligation to do so). An employment business is not expected to pay for tinted lenses or designer frames. However please see the below paragraph in relation to the position for workers who have qualified under the Agency Workers Regulations 2010.
Safety goggles and the Agency Workers Regulations 2010:
The Agency Workers Regulations 2010 (AWR) state that after a 12 week qualifying period, temporary workers are entitled to the same basic working terms and conditions as a direct recruit, one of which is ‘pay.’ Regulation 6(2) states that ‘pay means any sums payable to a worker of the hirer in connection with the worker’s employment.’ If a client’s directly recruited worker is given a voucher of a specific value (i.e. it has monetary value) with which to buy prescription safety goggles from opticians, a temporary worker is likely to be entitled to these vouchers after they have completed the 12 week qualifying period as vouchers fall within the scope of 'pay' under Regulation 6(2). - Provide health and safety training and information:
- Clients should provide information and training to ensure temporary workers can use their VDU and workstation safely and know how to make best use of it to avoid health problems, for example by adjusting the chair. Such information should include the action taken to reduce risks and the arrangements for breaks. Users and operators are required to use any equipment properly and safely in accordance with instructions given.
Further guidance on working with VDUs can be found on the HSE’s website.
2. Hazardous substances – COSHH:
The Control of Substances Hazardous to Health Regulations 2002 (COSHH) set out the requirements for the safety, preparation and use of chemicals at work. Employment businesses should work with clients to reduce and prevent a temporary worker’s exposure to hazardous substances by doing the following:
- finding out what the health hazards are;
- deciding how to prevent harm to health (via risk assessments);
- introducing control measures to reduce harm to health and ensure those measures are used;
- keeping all control measures in good working order;
- providing information, instruction and training for all workers;
- providing monitoring and health surveillance in appropriate cases; and
- planning for emergencies.
3. Working hours
Working long hours has been connected to high levels of stress as well as physical and mental fatigue amongst workers, which can affect their health and safety. Employment businesses should ensure that clients allow temporary workers to take the appropriate rest breaks in accordance with the Working Time Regulations 1998. Consideration should be given to the amount of hours worked by temporary workers, even where they have signed a 48 hour opt out agreement. The HSE guidance outlines some practical steps that should be taken where long working hours are a consideration:
- working hours and shifts are not too long;
- workers get enough rest between shifts;
- workers don’t work too many night shifts in a row;
- workers avoid critical jobs at the ends of shifts or at ‘low points’ in the day or night e.g. 3am;
- shifts rotate ‘forwards’ that is, mornings, then afternoons, then nights;
- workers take quality rest breaks in their work;
- anyone can report fatigue problems;
- the environment doesn’t cause drowsiness (it is light with visual interest, not too hot and there is always variation in the level of sound);
- there are contingency plans to avoid overloading one person with overtime or double shifts; and
- incidents or accidents where fatigue may be responsible are thoroughly investigated.
REC Legal Guide on the Working Time Regulations 1998
Drivers are subject to additional working time legislation, full details of which can be found here. The Department for Transport has additional guidance regarding the working time for driving goods vehicles and passenger vehicles.
4. Manual handling
The Manual Handling Operations Regulations 1992 (the MHOR) apply to a wide range of manual handling activities, including lifting, lowering, pushing, pulling and carrying.
Manual handling injuries can occur wherever people are at work - on farms and building sites, in factories, offices, warehouses, hospitals, banks, laboratories, and while making deliveries. Heavy manual labour, awkward postures, manual materials handling and previous or existing injury are all risk factors implicated in the development of musculoskeletal disorders (MSDs). More information on MSDs is available on the HSE website.
As a result of the MHOR, employment businesses should ensure that clients:
- avoid the need for hazardous manual handling, so far as is reasonably practicable (does the item need to be moved to do an activity or can the activity be done on the spot, can machinery be used to move the object?
- assess the risk of injury from any hazardous manual handling that can’t be avoided including assessing the physical suitability of the individual to carry out the task, the clothing and footwear the person is wearing and their knowledge and training in manual handling); and
- reduce the risk of injury from hazardous manual handling, so far as is reasonably practicable.
Temporary workers involved in manual handling have duties too. They should:
- follow appropriate systems of work laid down for their safety;
- make proper use of equipment provided for their safety;
- co-operate with the client on health and safety matters;
- inform the client if they identify hazardous handling activities;
- take care to ensure that their activities do not put others at risk.
Further guidance on manual handling is available from the HSE website.
Employment businesses may have to comply with some specific health and safety requirements where they are supplying domiciliary care workers or nurses to clients. The HSE website provides specific guidance on domiciliary care and providing health and social care services.
If your business is registered with the CQC, some further information can be found on the Care Quality Commission’s website.
5. Fire
The Regulatory Reform (Fire Safety) Order 2005 states that all employers are responsible for making sure their workplaces reach the required standard and employees are provided with adequate fire safety training. As temporary workers will be unfamiliar with a client’s premises and procedures, the client should provide fire safety training when he/she first arrives on site. This training should include:
- induction training and general fire awareness;
- the action they should take if they discover a fire;
- how to raise the alarm;
- the procedures for evacuating the building safely;
- the location of firefighting equipment and how to use it; and
- the location of fire escape routes.
Periodic refresher training should be offered to all temporary workers where there are any changes to fire procedures or there is a change in the degree of fire risk.
Clients are also required to comply with specific requirements in relation to firefighting equipment, fire detectors and alarms, emergency routes and exits and maintenance of all equipment.
Further guidance on fire safety can be found on the HSE‘s website.
6. Smoking at work
Smoking in public places has been banned in the UK since 1 July 2007. This includes all offices, factories, shops, pubs, bars, restaurants, membership clubs, public transport and work vehicles that are used by more than one person. All employers may be prosecuted and fined if they fail to manage and control smoke free premises. Therefore, both temporary workers and employed agency workers will not be able to smoke on a client’s premises.
- The REC’s model No Smoking Policy for use in your own business
7. Alcohol and Drug misuse
Under the Health and Safety at Work etc Act 1974, employment businesses and clients have a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare of their employees and workers. If a client knowingly allows a temporary worker under the influence of excess alcohol to continue working and this places the worker or others at risk, then the employment business or the client could be prosecuted. The client and the employment business should ensure they have an alcohol and drugs policy in place that clearly stipulates that workers will not be allowed to continue working where it is reasonably believed that he or she is under the influence of drugs or alcohol and is not able to carry out their assignment duties. In such circumstances (assuming the client has an effective drugs and alcohol policy in place) the client should send the worker home and inform the employment business of what has happened.
- REC’s model policy on drugs and alcohol in the work place
Members should also remember that, in certain sectors (such as in the driving sector), it is a criminal offence for workers to be unfit through drink or drugs while working.
Under the Misuse of Drugs Act 1971, an employer or client who knowingly allows the production or supply of controlled drugs (including cannabis) will also be guilty of an offence.
As employment businesses and clients have a joint responsibility when it comes to a temporary worker’s health and safety, employment businesses should ensure the client has an adequate alcohol and drugs policy in place.
Further guidance on alcohol and drugs at work can be found on the HSE website.
8. Stress
In 2018/19, 44% of work related illnesses were stress related. Stress-related illness connected with work is increasingly the subject of substantial claims against employers through the courts and tribunals. In order to successfully claim damages for mental or physical injury caused by stress, the worker must show that the injury was foreseeable by the employment business or the client. Therefore, where stress risks are a feature of the job, employment businesses should ensure a risk assessment is carried out and where complaints are made these should be dealt with quickly and investigated thoroughly.
Stress can manifest itself in different ways, however some symptoms may include:
Emotional symptoms:
- negative or depressive feeling;
- disappointment;
- increased emotional reactions - more tearful, sensitive or aggressive;
- loneliness, withdrawn;
- loss of motivation commitment and confidence;
Mental:
- confusion, indecision;
- difficulty concentrating;
- poor memory;
Changes from normal behaviour:
- changes in eating habits;
- increased smoking or drinking 'to cope;'
- mood swings effecting behaviour;
- twitchy, nervous behaviour; and
- changes in attendance such as arriving later or taking more time off.
Please note that this list of symptoms is non-exhaustive and some of these symptoms could be indications of other conditions.
Further guidance on work related stress can be found on the HSE’s website.
9. Bullying and harassment
Bullying and harassment can be physical, verbal or increasingly via cyber activity (email or comments on social networking sites). All workers should be safeguarded against bullying and harassment at work. Where the protective measures in place are inadequate, a temporary worker may be able to bring a claim for 3rd party harassment under the Equality Act 2010 (more information on the Equality Act 2010 is available in the REC Legal Guide). You should therefore ensure the client has adequate safeguards in place to protect temporary workers from bullying and harassment while on the client’s site. If a temporary worker raises a bullying or harassment issue, an employment business should work closely with the client to ensure the matter is dealt with quickly and investigated thoroughly. It may be necessary for the employment business to take the practical step of finding another suitable assignment for the temporary worker; however this should only be done with the express agreement of the temporary worker.
The person doing the bullying or harassment may be guilty of a criminal offence if it is done intentionally or is racially aggravated.
Further guidance on bullying and harassment can be found on the HSE’s website.
Personal Protective Equipment (PPE)
The Personal Protective Equipment at Work (Amendment) Regulations 2022 (the PPE Regulations) state that workers must have suitable PPE whenever they may be exposed to a risk to health and safety whilst at work.
What is PPE?
PPE means all equipment and clothing which is intended to be worn or held by a person at work and which affords protection against one or more risks to health or safety.
PPE includes the following:
- aprons, gloves and safety footwear;
- safety helmets;
- high visibility jackets;
- clothing designed to protect against adverse weather conditions;
- eye protectors, safety harnesses, respirators and life jackets; and
- reinforced gloves provided to chefs to safeguard against injury.
PPE does not include:
- ordinary working clothes and work uniforms that do not offer specific protection;
- caterers’ overalls and similar clothing provided solely in the interests of food hygiene;
- any requirement under the Road Traffic Act 1988 for equipment to be worn on public highways (such as cycle and crash helmets) still applies, but they are also excluded from the PPE Regulations;
- shields, truncheons and “rape alarms” that are designed to protect a worker from a criminal act;
- filters for display screens (including those that purport to protect against radiation) and so-called “VDU glasses”; and
- glasses with corrective lenses that are required under Regulation 5 of the Health and Safety (Display Screen Equipment) Regulations 1992.
Can I charge for PPE?
Employees
Section 9 of the Health and Safety at Work etc. Act 1974 states that employees should not be charged for their PPE. The guidance from the HSE clearly states that “an employer cannot ask for money from an employee for PPE, whether it is returnable or not.” Employers cannot therefore charge their employees for a PPE deposit, even if that deposit is returnable at a later date. For the purpose of the Health and Safety at Work etc. Act 1974 an employee is an individual who is engaged under a contract of employment rather than a contract for services.
Temporary workers
All employers (which will include employment businesses that supply temporary workers) must ensure that suitable personal protective equipment (PPE) is provided to workers who may be exposed to a risk to their health and safety while at work.
The definition of worker is set out in the ERA 1996 S.230 as an individual who has entered into or works under – (a) a contract of employment; or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual.
The employer’s duties include the assessment and FREE provision of PPE. Employers must ensure that PPE is suitable for use, it is maintained, replaced and there are other duties around the information, instruction, training, and use of PPE. The employees’ and workers’ duties under the PPER will include reporting loss and defects in the PPE, using it in accordance with the training and instruction provided, and ensuring PPE is returned to the employer.
In short, temporary workers are entitled to be provided with free PPE for their assignments, and the employment business covers this cost.
Gangmasters Licensing Authority (GLA)
The GLA prohibits labour providers from charging temporary workers for their PPE. Licensing Standard 6.3 states:
“A licence holder must co-operate with the labour user to make sure that adequate and appropriate Personal Protective Equipment (PPE) is provided. Employees and workers who would be legally regarded as employees for health and safety purposes must be provided with PPE without charge.
If a worker fails to return the PPE, as long as the requirement to do so has been made clear in writing, the licence holder may deduct the cost of the replacement from any wages owed.”
The wording of Licensing Standard 6.3 implies that, when it comes to health and safety, free PPE must be provided to workers that fall within the definition of the term ‘employee.’ Therefore, following Licensing Standard 6.3, employment businesses supplying into GLA regulated sectors will be taking a risk by charging temporary workers for PPE. However employment businesses will be able to recover the cost of replacement PPE (where temporary workers fail to return the PPE or return it in an unusable condition) if they have a term in their contract with the worker that enables them to.
If the licence holder is inspected by the GLA, non-compliance with Licensing Standard 6.3 will attract a score of 8 points (an aggregate score of 30 points will lead to revocation of the licence).
How to mitigate the costs of PPE
This requirement to provide free PPE to temporary workers is onerous for employment businesses, as there is no control over how the workers provide their services, therefore communication and co-operation with the client will be key to meet this obligation. To protect our members, we have suitable clauses in our model terms with clients, which state that:
“The Employment Business reserves the right to vary the Charges agreed with the Hirer, by giving written notice to the Hirer in order to comply with any additional liability imposed by statute or other legal requirement or entitlement……”
There is also a clause which requires the hirer to comply with the Health and Safety at Work etc Act 1974 when the workers are on an assignment.
These clauses will assist with discussions with the client where the employment business can increase their charges to meet a statutory obligation and ensure that correct PPE is provided to the worker.
Employment businesses can further mitigate the cost burden by:
- coming to an agreement with the client that the client meet the cost of the PPE. It is in the interests of the client, from a health and safety perspective (and a GLA licensed activity perspective), to control the type and management of PPE;
- reissue previously used and returned PPE, provided it is in a fit state for use by another wearer and provided suitable arrangements are in place for cleaning and disinfection;
- have the worker’s agreement to pay for lost or damaged PPE. The best way to do this is by having a contractual requirement on the worker to return the PPE in a fit and reusable condition on termination of their assignment. Failure to return at all or in a fit and reusable condition would be a breach of contract. The employer/employment business could then deduct an appropriate amount from the worker’s pay provided it has a contractual right to do so, The amount deducted should reflect the value of the PPE taking into account its age and condition (allowing for fair wear and tear).
An important question is how this works with the National Minimum Wage (NMW) and whether this is a deduction which can or cannot take the worker’s wages below the national minimum wage. In terms of the NMW, there are certain deductions from pay that employers can make which will reduce the amount of pay when calculating NMW and other deductions which are disregarded for the purpose of calculating the NMW.
The deductions which reduce the amount are:
(a) any deduction in respect of the worker's expenditure in connection with his employment; and
(b) any deduction made by the employer for his own use and benefit.
Employers must ensure that workers still have the NMW after these deductions have been made.
The deductions which are disregarded are:
(a) any deduction in respect of conduct of the worker, or any other event, in respect of which he (whether together with any other workers or not) is contractually liable;
(b) any deduction on account of an advance under an agreement for a loan or an advance of wages;
(c) any deduction made to recover an accidental overpayment of wages made to the worker;
(d) any deduction in respect of the purchase by the worker of any shares, other securities or share option, or of any share in a partnership.
These deductions are permitted even they if the bring the worker’s pay below the NMW.
The worker’s contract should require the worker to take care of PPE that they are provided with by their employer/ supplying employment business and to return it on request or when they are no longer using it. If the worker fails to return it when required, they would be in breach of contract. The worker’s contract may also contain an express provision enabling the employer/ employment business to recover the value of any lost or damaged PPE. REC suggests that this falls into (a) above (deductions which are disregarded) i.e. that it is a deduction relating to the conduct of the worker for which he or she is contractually liable and so which can be made even if it brings the worker’s wage below NMW.
HMRC view? NMW breaches can be enforced by either workers individually and/or or by HMRC. Low paid workers and NMW enforcement has always been topical and HMRC may take a robust view of how they interpret deductions that fall into the deductions which reduce the amount and whether such deductions are ultimately for the worker’s benefit or are connected with expenditure for employment. The counter argument is that the employer/employment business would not be charging the worker for the equipment, but would be recouping the cost of the lost or damaged equipment that the worker had a contractual obligation to safeguard.
Current national minimum wage rates can be found here.
The HSE has published a short guide on the PPE Regulations which can be found on their website.
What are ‘Fees for Intervention?’
Under the Health and Safety (Fees) Regulations 2012, the Health and Safety Executive has, since 1 October 2012, a legal duty to recover the costs it incurs in carrying out its regulatory function from those found to be in material breach of health and safety law. The ‘Fee for Intervention’ (FFI) will be used to recover the cost of the time that an inspector spends identifying the material breach, helping businesses to put it right, investigating and taking enforcement action.
What is a material breach?
Guidance produced from the HSE makes it clear that a material breach is:
‘When, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion.
Written notification from an HSE inspector may be by a notification of contravention, an improvement or prohibition notice, or a prosecution and must include the following information:
- the law that the inspector considers has broken;
- the reasons for their opinion; and
- notification that a fee is payable to HSE.
The written notification should also make it clear which contraventions are material breaches.’
The charge rate is currently £157 per hour and is not subject to any minimum or maximum amount. The fee is based on the amount of time the inspector has spent identifying the material breach, helping businesses to put it right, investigating and taking enforcement action.
Further guidance on the Health and Safety (Fees) Regulations 2012 can be found on the HSE website.
The Corporate Manslaughter and Corporate Homicide Act 2007
The Corporate Manslaughter and Corporate Homicide Act 2007 (the Act) creates a new offence of corporate manslaughter (in England, Wales and Northern Ireland) or homicide (in Scotland) to apply to companies and other corporate bodies, including employment agencies and businesses. The Act renders organisations liable for prosecution if the way in which their senior management organises its activities causes a person’s death and amounts to a gross breach of the duty of care it owed to the deceased person. In other words, in cases where the negligence of an organisation leads to the involuntary killing of an individual, that organisation will be liable for prosecution under the Act.
What is meant by a relevant duty of care under the Act and what would constitute a gross breach of that duty?
Section 2 of the Act defines a ‘relevant duty of care’ as meaning “any of the following duties owed by it under the law of negligence:
- a duty owed to its employees or to other persons working for the organisation or performing services for it;
- a duty owed as occupier of premises;
- (3) a duty owed in connection with—
(i) the supply by the organisation of goods or services (whether for consideration or not),
(ii) the carrying on by the organisation of any construction or maintenance operations,
(iii) the carrying on by the organisation of any other activity on a commercial basis, or
(iv) the use or keeping by the organisation of any plant, vehicle or other thing;”
In order for a gross breach of the duty of care to have been committed an organisation’s conduct must have fallen far below what could reasonably have been expected of it.
Employment agencies and businesses should review their health and safety processes and procedures to ensure they are fit for purpose. However it should be noted that the Act does not set down any new statutory duties or regulatory standards with regard to health and safety. The offence under the Act relates to breaches of existing health and safety law and if found guilty, an organisation can expect one or more of the following: an unlimited fine, a publicity order (where the organisation or company is required to publicise that they have been found guilty of an offence) or a remedial order (an order to take steps to address any failures that led to death). The costs of defending a prosecution will normally be covered by insurance although this should be checked with your insurance providers. It is not possible to insure against statutory fines.
Liabilities or individuals
Individual directors and senior managers are not liable for prosecution under the Act. The offence of corporate manslaughter/homicide is aimed at cases where management failures across an organisation cause a fatality. It will be the organisation that faces prosecution rather than the individual. However please note that individuals can already be prosecuted for gross negligence manslaughter (culpable homicide in Scotland) and for health and safety offences under existing legislation and the Act does not change this.
The Sentencing Council guidance states that fines for corporate manslaughter “will seldom be less than £500,000 and may be measured in millions of pounds.” The first prosecution for corporate manslaughter under the Act was in February 2011. In the case, a geologist working for Cotswold Geotechnical Holdings was responsible for taking some soil samples for a housing development. The pit he was collecting the samples from caved in burying him in earth and he subsequently died. Cotswold Geotechnical Holdings were found to be in gross breach of their company duty as they had failed to take all reasonably practicable steps to protect their employees from working in such dangerous conditions. Cotswold Geotechnical Holdings were found guilty of corporate manslaughter and were fined £385,000.
A more recent case saw Lion Steel Limited admit the charge of corporate manslaughter in Manchester Crown Court on 20 July 2012 in relation to the death of a 45-year-old employee who suffered fatal injuries when he fell through a fragile roof panel at the firm’s Hyde factory in May 2008. Sentencing, Judge Gilbart QC ordered the company to pay a fine of £480,000 and also ordered them to pay £84,000 towards the prosecution costs. Three of the company’s directors had come to an agreement with the Crown Prosecution Service whereby if they pleaded guilty to the offence of corporate manslaughter, they would avoid criminal prosecution for gross negligence manslaughter.
Further information can be found from:
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.