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Serious incidents involving agency workers

Formerly OC 84/5

OG status: Fully open

Author Unit/Section: FOD Legal and Enforcement Unit

Target Audience: All HSE Inspectors

Summary

This OC requires inspectors to inform the Department for Business, Innovation and Skills (BIS) about serious incidents at work involving agency workers and details the arrangements for doing this.

Action

If inspectors become aware of any incident in which:

They should arrange for The Employment Agency Standards Inspectorate (EASI) to be informed as quickly as possible in one of the following ways:

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

Scope of incidents to be notified

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.

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 BIS indicating that there is some uncertainty over employment status. This uncertainty can then be resolved as any subsequent investigations progress.

There are 2 particular employment issues that inspectors should note:

Liaison with BIS inspectors

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

In particular, BIS 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, and potential difficulties in court, e.g. defence submissions of double jeopardy, are avoided.

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 Head of Employment Agency Standards using one of the contact methods listed in the appendix.

Background

The Employment Agency Standards inspectorate (EASI) works with agencies, employers, and workers to ensure compliance with 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.

There is a 6-month time limit for initiating legal proceedings under the EAA.  This can cause issues for BIS as they do not always find out about incidents until a good while after they have occurred.  HSE have agreed to assist BIS using this process.

Contacts

Legal and Enforcement

Updated 2014-02-25