There is often confusion as to whether hirers or agencies are responsible for the health and safety of agency workers, and in many situations both parties argue that it is the other. In reality, both parties have health and safety responsibilities; the extent of those responsibilities will depend on whether the agency worker is the employee of the hirer or the agency. This should be determined by looking at any contracts that are in place, and also what actually happens in practice.
Both hirers and agencies have responsibilities to ensure the health, safety and welfare of the agency workers at work under the Health and Safety at Work etc Act 1974, either under section 2, if the agency workers are their employees, or alternatively under section 3 if they are not, as the agency workers would then be classed as ‘persons not in their employment who may be affected. . by their activities’. Hirers also have an express duty to pass on necessary health and safety information to the agency for passing on to the agency workers (Regulation 15 of the Management of Health and Safety at Work Regulations 1999).
The Agency Workers Regulations 2010, which are due to come into force on 1 October 2011, give some clarity to the situation by providing agency workers, after 12 weeks, with the right to equal treatment, meaning that they are entitled to the same basic working conditions as if they were recruited directly by the hirer. These conditions expressly include the duration of working time, length of night work, rest periods, rest breaks and annual leave (Regulation 15), all of which impact on the health, safety and welfare of agency workers at work. Liability for not providing equal treatment in relation to these conditions is split between the hirer and the agency, depending on the extent to which each is at fault (Regulation 14).
Further, the Agency Workers Regulations 2010 insert a new provision into the Management of Health and Safety at Work Regulations 1999, requiring the hirer to change the working conditions or hours of a pregnant agency worker if they pose a risk to her health and safety at work. If the hirer is not able to do this, the agency must continue to pay the agency worker or find them alternative work for the remainder of the original assignment.
These new Regulations force both the agency and the hirer to take responsibility or face split liability, and thus the regular arguments as to who is the agency worker’s employer become unnecessary. To avoid any liability, both the hirer and the agency should ensure that agency workers are afforded the same health and safety protection as directly recruited employees.