The new regulations extend the Health & Safety responsibilities of employers when it comes to providing free personal protective equipment (PPE) to take into account those who may be classified as “workers” and not just employees. These new regulations make it more important than ever to make sure you understand your wider Health & Safety obligations to the people who work for you – and what their employment status is.
Under the Health and Safety at Work etc Act (HWSA) 1974, the Management of Health and Safety Regulations 1999 and other legislation, it’s an employer’s duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. As an employer, you must do whatever is reasonably practicable to achieve this.
This means making sure that workers and others are protected from anything that may cause harm and effectively controlling any risks to injury or health that could spring up in the workplace.
Although businesses give lots of different labels to the people who work for them, from an employment law perspective they have to either be an employee, genuinely self-employed, or – if they don’t fit either of those categories - fall into a third category of a worker.
Section 53 (1) of the HSWA 1974 defines an employee as “an individual who works under a contract of employment”. A contract of employment is defined as “a contract of employment or apprenticeship (whether express or implied and, if express, whether oral or in writing)”.
The HSWA 1974 defines a “self-employed person” as “an individual who works for gain or reward otherwise than under a contract of employment, whether or not they employ others”.
In employment law, there’s a third category of persons besides employees and the selfemployed - the category of “worker”. A worker can be hard to define because they’re normally found to be a worker because of what they’re not, rather than what they are.
The best way to think about it is that they’re someone who provides work personally to the business who is not:
This category doesn’t exist under HSWA 1974. Other specific regulations, however, also place a duty upon a person in control of work, regardless of whether those affected are employees, self-employed or workers (for example, the Construction (Design and Management) Regulations (CDM) 2015)
You may also hear or use the following terms:
None of these are employment status categories in a legal sense. Only employees, self-employed persons, and workers are covered by employment law. Anyone described by the terms above will fall into one of those three legal categories.
Which one they fall into will depend on the individual circumstances of each situation so it’s always worth seeking advice from legal experts to understand more about the factors that could decide this. Be aware that it’ll ultimately be a court who will have the final say on this
The HSWA 1974 requires employers to provide whatever information, instruction, training, and supervision necessary to ensure, so far as is reasonably practicable, the Health & Safety at work of their employees. If you have a contract with a worker and you exercise significant control over the worker, there may be an employment relationship between the worker and your business. You have the same Health & Safety duties towards these workers as you have towards your other employees (full or part-time, temporary or permanent).
The self-employed have Health & Safety responsibilities for both themselves and anyone who is affected by their work – though you may find your business holds some responsibilities towards self-employed individuals on some sites and in some industries under other regulations.
As we said at the beginning of this article, workers aren’t specifically recognised by the HWSA 1974. But other specific regulations do place a duty upon you if you’re in control of the work, regardless of whether those affected are employees, self-employed or workers (for example, the Construction (Design and Management) Regulations (CDM) 2015).
Generally, you must provide the same level of Health & Safety protection to workers (temporary, casual, or agency workers) as you would for your employees.
There are some unique provisions for agency workers – the responsibility for their Health & Safety is shared by both the employment agency and the business that uses those agency workers and all arrangements should be agreed before the work begins. This is the same if workers are hired from a contractor or other employment business.