Health and safety law
Introduction
The same health and safety law applies to overseas workers as to the GB workforce, and everyone at work, including employers and workers, has responsibilities under it.
There is no simple answer to the question "Who is responsible for the health and safety of migrant workers?" When a business uses workers supplied by an independent labour provider, the business and the labour provider have a shared responsibility to protect their health and safety.
In practice, determining who is the employer will depend on the facts of each case, ie on the nature of and circumstances under which the work is being carried out and the relationship between the parties involved. In some cases workers may be employees of the labour provider, in others of the business using them.
A worker is likely to be your employee if:
- You make deductions for national insurance and income tax from the money you pay them;
- You direct and control where, when and how they work;
- You supply most of the materials and equipment they use at work; and
- They cannot supply a substitute when they are unable to work.
To avoid any misunderstanding and confusion, labour providers and users are advised to clarify their relationship and agree their respective responsibilities including the practical arrangements for the day-to-day management and supervision of the workers. Any agreement should be formalised in writing by way of a contract, service level agreement or other form of agreement.
Although health and safety law doesn't generally require workers to be able to speak English, learning English reduces communication difficulties and has been shown to lead to higher productivity and retention rates, as well as promoting integration outside work. Employers should consider providing English for Speakers of Other Languages (ESOL) courses for workers who need to improve their English.
The main legislation which applies to the employment of migrant workers includes:
Further information on the HSW Act and other regulations is set out below.
There is other legislation on specific health and safety topics and further relevant legislation, enforced by other regulatory bodies such as the local authorities and the police which sets out standards on matters such as accommodation and transport to and from work provided for migrant workers.
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The Health and Safety at Work etc Act 1974 (HSW Act)
Under the Act you have to ensure the health and safety of yourself and others who may be affected by what you do or do not do. Among other things, employers must provide:
- Safe plant and systems of work;
- Arrangements in connection with the safe use, handling, storage and transport of articles (which would include fresh produce) and substances (including agricultural chemicals/pesticides etc) for use at work;
- Information, instruction and training; and
- Supervision.
At the same time, employees must:
- Make sure what they do at work does not put themselves or other people at risk;
- Help their employer to reduce health and safety risks in the workplace;
- Use any work equipment provided for their use in the way in which they have been trained;
- Use properly any personal protective clothing (PPE) or equipment supplied for their health and safety;
- Let their employer know (in writing) if they are pregnant, breastfeeding or have given birth within the past 6 months.
The Management of Health and Safety at Work Regulations 1999
These regulations supplement the HSW Act and also apply to every workplace. They require that all risks arising out of or in connection with work activities are assessed and controlled.
The regulations impose specific duties on employers to:
- Carry out risk assessments;
- Implement and maintain any health and safety arrangements or control measures identified by the risk assessment as being necessary to ensure the health and safety of the workers;
- Provide any necessary information, instruction, training and supervision; and
- Make sure there is co-operation and co-ordination between employers, including specifically on the provision of comprehensible information to workers about:
- Any special qualifications or skills required to carry out the work safely;
- Risks to their health and safety; and
- Health surveillance
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Personal Protective Equipment at Work Regulations 1992 (as amended)
These Regulations require that Personal Protective Equipment (PPE) should be supplied and used at work wherever there are risks to health and safety that cannot be adequately controlled in other ways.
Suitable PPE should be provided for workers where a risk assessment shows it to be necessary. The provision and use of wet or cold weather clothing may be particularly important where workers are required to work outdoors.
While labour providers and users need to come to an arrangement about who will pay for any PPE required, they may not pass on any charge to a temporary or overseas worker. Neither may they charge a refundable deposit against non-return of the equipment. While they can make a deduction from a worker's final wages if the equipment is not returned on termination of the employment for which it was issued, they may only do so if this was made clear in the contract with the worker(s) when they started work.
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Workplace (Health, Safety and Welfare) Regulations 1992
These Regulations cover a wide range of basic health, safety and welfare issues and apply to most workplaces with the exception, among other things, of construction work on construction sites. "Workplace" means any non-domestic premises made available as a place of work and the "premises" means any place (including an unenclosed, outdoor place).
Under the Regulations, employers must provide adequate welfare facilities and arrangements for workers while they are at work, however short the period. "Welfare facilities" are those that are necessary for the well-being of employees, such as washing, toilet, rest and changing facilities, and somewhere clean to eat and drink during breaks.
The provision of basic welfare facilities such as sanitary conveniences, washing facilities and drinking water are particularly important for overseas workers, many of whom are employed in remote, outdoor locations or premises in manual activities such as labouring or planting and harvesting agricultural produce.
Guidance on the application of the Regulations to specific industries and sectors in which overseas workers are known to be employed in significant numbers, including agriculture and construction, can be found on HSE's website.
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Employers' Liability Insurance (Compulsory Insurance) Act 1969 (as amended)
The Act obliges employers to insure against their liability for personal injury to employees. It is required by law and is intended to protect your workers if they are injured or made ill at work.
The duty to provide Employers' Liability Compulsory Insurance (ELCI) is placed on employers. Again, a worker is likely to be your employee if:
- You make deductions for national insurance and income tax from the money you pay them;
- You direct and control where, when and how they work;
- You supply most of the materials and equipment they use at work; and
- They cannot supply a substitute when they are unable to work.
In industries such as agriculture and food processing where workers are often supplied by an independent labour provider and where they work under the direction and control of the labour user, the user's ELCI policy will generally provide appropriate cover. In other circumstances, for example where the labour provider directly controls harvest work on agricultural premises, he/she may have to arrange insurance independently.
Labour providers should check with the users with whom they have a contract to ensure that current and valid ELCI is in place that provides cover for any workers supplied while working for the user. If in doubt seek advice from your insurance company.
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The Safety Representatives and Safety Committees Regulations 1977
The Health and Safety (Consultation with Employees) Regulations 1996
These Regulations require employers to consult with their employees on health and safety matters and make provision for both trades-union-appointed safety representatives and representatives of employee safety elected by the workforce.
Joint consultation can help businesses become more efficient by helping to reduce the number of accidents and work-related illnesses and to motivate staff by making them aware of health and safety issues. This may be particularly important when employing or using workers from overseas who are often unfamiliar with the work they have been recruited to do and with the health and safety culture of the business for which they are working.
Employers must consult on a range of health and safety issues, including:
- Any measure at the workplace which may substantially affect their health and safety, eg changes in procedures, equipment or ways of working;
- Arrangements for getting competent people to help them comply with health and safety requirements and evacuation procedures;
- The information they must give to employees about risks to health and safety and preventive measures;
- Planning and organising health and safety training;
- The health and safety consequences of introducing new technology.
Also, in workplaces in which the employer recognises a trades union:
- The employer must consult with trade-union-appointed safety representatives on health and safety matters affecting the employees they represent.
Trades-union-appointed safety representatives may:
- Investigate possible dangers at work, the causes of accidents there and general complaints by employees on health and safety and welfare issues and take these up with the employer;
- Carry out inspections of the workplace;
- Represent employees in discussions with HSE inspectors and receive information from them;
- Attend safety committee meetings.
In workplaces in which trades unions are not recognised:
- Employees must be consulted on health and safety, either directly or through their elected representatives.
Elected representatives of employee safety may:
- Take up with employers concerns about possible risks and dangerous events in the workplace that may affect the employees they represent;
- Take up with employers general matters affecting the health and safety of the employees they represent;
- Represent the employees who elected them in consultations with health and safety inspectors.
For more detailed information about the legal duty to consult, what you should consult on and which system applies to you, see:
All representatives must be given reasonable time off with pay and appropriate help and facilities so they can carry out their roles and take part in training.
HSE's website has more information on the role of safety representatives and representatives of employee safety and releasing information to employees.
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Gas Safety (Installation and Use) Regulations 1999
About 30 people die each year as a result of carbon monoxide poisoning caused by gas appliances and flues which have not been properly installed or maintained.
If you are providing accommodation for workers, which is heated by a gas appliance, you are considered to be a landlord and will have specific duties under the Regulations.
You must:
- Ensure that gas fittings and flues are maintained in a safe condition
- Ensure an annual safety check is carried out on each gas appliance/flue
- Have all installation, maintenance and safety checks carried out by a Gas Safe registered engineer
- Keep a record of each safety check for at least two years
- Issue a copy of the latest safety check record to existing occupants within 28 days of the check being completed, or to new occupants before they move in (in certain circumstances there is an option to display the record, eg if the period of occupation is less than 28 days)
- Have the record translated or explained to workers who do not read English
LPG-fired heating appliances (such as those commonly found in temporary accommodation like caravans) need to be treated the same as those fuelled by natural gas. The UKLPG Association has produced guidance in partnership with HSE "Fire and gas safety guidance for farmers using LPG for caravans".
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See also
