Serious incidents involving agency workers

Author Unit/Section

FOD NW HQ

Target Audience

  All HSE Inspectors, HMRI Inspectors

Purpose

This OC requires inspectors to inform the Department for Business, Enterprise and Regulatory Reform (BERR) about serious incidents at work involving agency workers and details the arrangements for doing this.

Background

1  The Employment Agency Standards Inspectorate (EASI) enforces the Employment Agencies Act 1973 (EAA) and supporting regulations. These include provisions that an employment agency involved in employing or placing workers should only supply workers to carry out tasks for which they are suitable. Failure to do this could leave the agency open to prosecution under EAA in the event of a serious incident.

2  Employment Agency Standards Inspectorate (EASI) is part of the Employment Relations Directorate (ERD) which is part of BERR the Department for Business Enterprise and Regulatory Reform.  Both ERD/EASI were formerly part of Department for Trade and Industry (DTI).

3  Concerns have been raised that BERR may not find out about such incidents until some time after they have occurred. This can cause problems since there is a 6-month time limit for initiating legal proceedings under the EAA.

4  HSE Solicitors Office has advised that there is no legal reason why HSE could not provide information on relevant incidents to BERR. We have, therefore, agreed to do this with respect to serious incidents.

Action by inspectors

Procedure for notifying BERR

5  If inspectors become aware of any incident in which:

1. a worker is either killed or sustains a reportable major injury whilst at work, and
2. that worker was employed (or effectively employed) by an employment agency at the time of the incident,

they should arrange for the EASI to be informed as quickly as possible. Details of how to contact the Inspectorate and the information that should be provided are given at the Appendix.

6  For statistical purposes, each HSE operational division/directorate should also keep a central record of all notifications made to BERR. Details of the arrangements for this are also contained in the appendix. Duplicate local records are not required.

Scope of incidents to be notified

7  This procedure only needs to be followed when information that an employment agency may be involved becomes available either from the initial incident report, or from further enquiries made by an inspector. There is no need for inspectors to seek out this information if the accident would not normally be selected for investigation.

8  Determining employment status can be difficult and it may not always be clear whether or not a person involved in an incident is in fact employed by an employment agency for the purposes of the EAA. The principal purpose of this OC is to ensure that information is provided as quickly as possible. In cases of doubt, a report should be made to BERR indicating that there is some uncertainty over employment status. This uncertainty can then be resolved as any subsequent investigations progress.

9  There are 2 particular employment issues that inspectors should note:

1. The EAA does not extend to agencies who supply registered nurses or midwives. There is therefore no need to inform BERR of incidents involving these groups of workers. These agencies may, however, also supply ancillary health care workers such as nursing auxiliaries; incidents involving these groups will fall within the scope of these arrangements.
2. Agricultural workers provided by gangmasters may be classified as agency workers depending on the terms of the hiring arrangements.

Liaison with BERR inspectors

10 In order that investigations and any ensuing enforcement action can be properly coordinated, BERR has agreed to keep the notifying inspector informed if it proposes to act on the information provided by HSE.

11 In particular, BERR has agreed that it will not take legal proceedings without first discussing this with the HSE inspector dealing with the incident. This is particularly important in situations where HSE may also be considering proceedings in relation to the same incident. Close liaison will be necessary so that any decision is coordinated and timely, any subsequent legal proceedings meet the statutory functions of all of the parties and are in line with the Code for Crown Prosecutors (file 168), and potential difficulties in court, eg defence submissions of double jeopardy, are avoided.

12  If inspectors experience any difficulties with respect to coordination which cannot be resolved locally, they should discuss this with their line manager. If necessary, line managers can then raise the concerns directly with the Chief Inspector of Employment Agency Standards using one of the contact methods listed at the appendix.

Review of these arrangements

13  HSE and BERR have agreed to keep these arrangements under review. Any difficulties in implementing this OC should be raised with FOD FSU (1.3.62 Redgrave Court, VPN 523  3372) which will act as a central HSE contact with Policy Unit.

Appendix (paras 5, 6 and 12)

1  Details of relevant incidents should be reported as soon as possible to the Employment Agency Standards Inspectorate by any of the following means:

2  As many of the following details as possible should be provided:

1. name of the injured person;
2. place where the incident occurred;
3. name and address of the employment agency;
4. brief details of the accident and injuries sustained; and
5. name and telephone number of the HSE inspector dealing with the incident (indicating whether HSE proposes to investigate the incident).

3  In addition the same details should be forwarded to the appropriate operational directorate / divisional contact as indicated in the table below: