Appendix 2: Selling second hand machinery – information for sellers and auctioneers

1 Introduction

This information is for anyone involved in selling second hand plant and/or machinery through auction. It clarifies the general health and safety responsibilities of the seller and the auctioneer to protect those who might use or come into contact with the equipment at a later stage. Failure to manage and discharge these responsibilities could lead to events that could prove costly to all parties. It should be noted that auctioneers could also be sellers.

2 What is "plant" and "machinery"?

Plant is a term that does not have a specific meaning in supply legislation, but is used to refer to all items of industrial apparatus and so will include the more narrow term 'Machinery'. It also includes complex items made up of individual items and also pressure equipment, and electrical equipment etc. Plant can also refer to the building and the site and the permanent appliance needed for running and maintaining equipment.

Machinery has a specific meaning in the Supply of Machinery (Safety) Regulations 2008 and is normally regarded as being a piece of equipment which has moving parts and, usually, some kind of drive unit. Examples include:

• fork-lift truck;
• metal working drill;
• paper making machine;
• circular saw;
• combine harvester;
• lifting equipment (including lifting tackle);
• escalator;
• meat mincing machine;
• baling machine.

3. What is the health and safety law relating to auctions?

Section 6 of the Health & Safety at Work Act 1974 (HSWA) covers the sale of second hand plant and machinery at auction. It broadly places duties on anyone who designs, manufactures, imports or supplies any article for use at work, to ensure, so far as is reasonably practicable, that it will be safe. It applies to new and second hand articles.

The duties extend to:

• carrying out or arranging for any necessary testing and examination;
• providing adequate information to those supplied with the articles about their use and maintenance;
• providing any necessary revisions of that information.

The Supply of Machinery (Safety) Regulations 2008 sets out the responsibilities of persons in the "new on the market" supply chain. This includes duties to supply machinery, partly-completed machinery or safety components that comply with the Regulations, ie they have the requisite technical file, Declaration of Conformity, EC Type-examination certificate, Declaration of Incorporation as appropriate, is CE marked and is in fact 'safe'. Guidance on these Regulations can be found on the National Archives.

4. Definition of a supplier

Section 53 of the HSWA refers to the supplying of articles by sale, lease, hire purchase, whether as principal or agent for another. Agent in this respect means the relationship where one person has the authority to create legal relationships between a principal and third parties – as with an auctioneer.

5. "So far as is reasonably practicable" in more detail

The law requires that duty holders, which can include an auctioneers as suppliers, do what is reasonably practicable to supply equipment that is safe for use at work. This means that duty holders must weigh up the degree of risk against the cost of implementing measures to reduce it. The duty holder must take measures to reduce a significant risk unless the cost of doing so clearly exceeds the benefit. In practice, this means that either the auctioneer or the seller will need to ensure a risk assessment is carried out in relation to the items to be sold in order to ensure that the necessary health and safety precautions are identified, the safeguards have been provided and that the risks are sufficiently reduced.

If legal action is taken in any particular case it is the defendant who has the legal duty to prove in court, that is was not reasonably practicable to do more they did.

If the machine is as originally manufactured, with all guards fitted and the documentation in place this should be sufficient, provided the standards of protection are still valid –but this needs to be checked.

6. Division of responsibilities between the auctioneer and the seller

Responsibility largely depends on which party is most familiar with the goods being sold and what is involved in the sale (information, spares etc.). An important point is that neither party can completely evade responsibility.

The extent of each party's responsibility will vary with the contract or type of auction and two common arrangements are described below:

Collective auction

Collective auctions are where the auctioneer only offers their services to get the bids and have no input to the product description, eg the auctioneer goes to a farm to run a clearance sale and has no previous sight or knowledge of the goods. In this case, if the seller is familiar with the goods and is the manufacturer, importer or previous owner etc. they are considered to have greater responsibility for meeting the duties than the auctioneer.

This would also apply when the auctioneer is called on at short notice or when the auctioneer is supplied with information by the seller they can reasonably believe to be correct.

Where the seller is without practical experience of the goods to be sold, the seller and the auctioneer must agree what needs to be done to satisfy section 6 of HSWA, and who will arrange this. This might mean calling a competent person to establish that the machine is safe, or contacting the manufacturer for a manual.

Catalogue auction

At Catalogue Auctions the auctioneer is considered to bear responsibility due to their knowledge of the products, having examined, valued and catalogued them. In this case the auctioneer would be responsible as well as the owner seller. If the auctioneer is taking on the role of executor then they may take on the responsibilities of the seller.

It is most likely that an auctioneer's duty will vary for each item that comes up for sale. However, what must be clearly understood by the seller is the fact that selling goods by auction does not free them from their responsibilities.

7. Responsibilities of sellers

There are a number of things for sellers to consider when selling through an auction. These include:

• Checking applicable standards for control of health and safety risks have been met for items to be auctioned. eg by following the current European Standard and having a declaration of conformity if applicable.
• It may help to compare the control methods used by different manufacturers to judge that the risks are being controlled to at least the same level.
• If a seller is unsure about the operation and/or safety of more complex or custom-built machinery they should contact a competent person (organisation) to help and/or advise them.

Prior to bidding the seller should provide the auctioneer with a written declaration stating that the equipment should be safe – but remember that if the machinery is clearly unsafe to a layperson then the auctioneer's liability will not be mitigated.

8. Frequently asked questions about supply of second hand machinery

How can the seller check the machine is safe?

• The manufacturer or supplier should be able to provide them with information on how the machine works and its safety features. With smaller off-the-shelf machinery, eg electric hand drills this should be included with the machine. If the information is not available eg the manufacturer no longer exists, they may have to arrange for the equipment to be examined by a competent person.
• They should also consider the following:
  • do any parts look dangerous, eg exposed gear wheels, cutters?
  • are there suitable guards fitted and are they in place?
  • can the controls be understood?
  • can dust or fumes escape from the machine?
  • is it excessively noisy?
  • is there excessive vibration?
  • are any exposed parts likely to be extremely hot or cold?
  • are there any live electrical parts that are exposed or easy to get at?
  • are there any special features, eg slow speed running, for use when setting?
  • are the manufacturers' instructions or operators manual clear and comprehensive?
  • if new, is the machine CE marked and has a Declaration of Conformity?

What should the seller do if they think the machinery isn't safe?

• Do not sell it.
• Contact the manufacturer, supplier or competent person (organisation) for advice and arrange for the machine to be put right before sale.
• If information is not available they should consider producing guidelines for prospective buyers, including any warnings that are necessary.
• If appropriate safeguards cannot be sourced, the seller should inform the buyer of the deficiencies they have identified with the machinery/equipment. The buyer can then decide whether to agree to buy with a section 6(8) waiver or not to go ahead with the purchase.

Do importers, suppliers and auctioneers have to follow all these requirements even if the machinery is made outside Europe?

All those involved in the supply process have to make sure the machinery they supply in the European Economic Area (EEA) is safe no matter where it is made. The EEA includes the European Union member countries and also Iceland, Norway and Liechtenstein, but excludes Switzerland even though that country is implementing the European Directive.

The seller will also need to check that the documentation shows that:

• the manufacturer has carried out all the steps involved in making sure the machine is safe;
• there is a Declaration of Conformity or Incorporation for the machine;
• there are full instructions for installing, using and maintaining the machine;
• if complete, the machine has CE marking.

What does a Declaration of Conformity have on it?

• the name and address of the manufacturer or other responsible person.
• the make, type and serial number of the machine.
• the signature of an authorised person and information on:
  • which standards have been used in the design and manufacture (if any);
  • what European Union laws (directives) the machine complies with.

What is a Declaration of Incorporation?

If the machine is intended for:

• incorporation into another machine, or
• assembly with other machines (note this does not apply to interchangeable equipment that can be taken on or off the other machine by the operator, these machines must have a Declaration of Conformity and be CE marked – examples are farm machinery used with tractors such as balers, power harrows etc) ;

the manufacturer can issue a 'Declaration of Incorporation'. In this case the partly complete machine may not have CE marking.

What law covers selling second-hand machinery?

It is still covered by section 6 of HSWA and has to be safe for use. In many cases it will not have CE marking, but it is still the duty of the supplier to make sure that it is safe and has instructions for safe use. There is also the duty to make sure that second-hand machinery is:

• safe;
• suitable for the work it is to do and;
• maintained in a safe condition when presented at sale.

If a second-hand machine has been totally refurbished and upgraded (eg adding CNC control to a machine, together with other work) it should have a new CE marking, if not it will probably need to go through a conformity assessment and be CE marked, you or the client may need to consult a suitable expert. This extra work is needed because the way it operates and the way risks are controlled may be different after the refurbishment and as a result it needs to be treated as if it was a new machine.

This publication may be freely reproduced, except for advertising, endorsement or commercial purposes. The information is current at new date. Please acknowledge the source as HSE.