Specific categories of workers

Apprentices

1. A contract for apprenticeship is different from other contracts of employment, as its essential purpose is training, with the execution of work for the employer being secondary. It is an essential characteristic of the relationship that education and training is provided in the trade or profession and that the apprentice agrees to serve, work and follow all reasonable instructions of the employer. The absence of such a contractual requirement (on either side) is fatal to the assertion that the contract is one of apprenticeship. Some of the training can be provided by a 3rd party and it will still count as an apprenticeship contract. The contract must be of fixed duration and have an ascertainable end (for example, either a date, or when the apprentice achieves qualification)1.

2. An apprenticeship contract is a contract of employment under HSWA section 53(1) - see Status of Workers - Introduction section.

Company directors

3. The legal status of a director is that of an office-holder and an agent of the company. A director could also be an employee, self-employed, or neither. Information identifying a director of any particular company is available from Companies House.

4. Executive directors are usually employees of the company. An employee is defined in section 53 HSWA as a person who works under a contract of employment. Ultimately, as with other people, employment status will depend on the assessment of all relevant factors - which may include whether (s)he receives remuneration, and also whether (s)he performs a directorial role or is under the control of the other directors.

5. Inspectors will be able to use their section 20 powers, if necessary, to require companies to disclose the service contracts of their directors or notes and minutes of meetings so that they can be inspected and/or copies taken of them.

6. A non-executive director is more likely to be self-employed, although the circumstances of each case should still be assessed. Self-employed is defined by section 53 HSWA in very wide terms as an individual who does work for their own gain or reward, otherwise than under a contract of employment, regardless of whether or not they employ others.

7. In very rare cases, a director's employment status may fall outside the definition of an employee or self-employed person: he or she may (if receiving some form of remuneration) be a "worker", being neither employed or self-employed. The courts will be keen to find an employment relationship or a self-employment status rather than define a person's status as "worker". Inspectors should make every effort to find evidence of employment or self-employed (the broad definition of self-employed in section 53 HSWA will assist). See also the guidance below on "workers".

Casual workers

8. Casual work is where a person undertakes short periods of work, with breaks between each period when no work is offered or done. The two most common types of casual work are:

  • a situation where the worker may choose, without penalty, whether or not to come to work and the 'employer' only pays for the hours worked without offering any other benefits. These arrangements may still give rise to a contract of employment when the worker is on site and carrying out work even though there is no overarching contract of employment covering the gaps between the days when no work was carried out. Is there a mutuality of obligation between the parties for the period of work? Do the factors such as control point towards the worker being an employee rather than some other kind of contract? If so a contract of employment may exist.2

  • a situation where casual work is taken on for a short period, such as holiday work for students, when the hours and conditions of the work are stipulated by the 'employer', although this is often only verbally; such arrangements would normally give rise to a contract of employment.

9. In either situation, there could, depending on the facts in each case, also be a 'global' contract of employment where such mutual obligations exist. The longer the relationship between the parties and the more regular and continuing the work, the more likely it will be that a 'global' contract of employment exists.

Labour-only subcontractors

10. Labour-only subcontracting is particularly common in the building and construction industry . In this situation, the main contractor engages the labour needed on a project by sub-contracting specific jobs to workers (sub-contractors). The legal status of such a worker depends on the normal application of the various criteria listed above. The courts have shown a willingness to overlook the fact that the worker is described as "self-employed", if the other factual circumstances actually point towards employment.

11. In one case 3, a general labourer was engaged by a firm of builders and was expressly told that he was working as part of a "lump" labour force. He was paid an hourly rate without deductions for tax and national insurance, but was provided with tools and was subject to the day-to-day control of the site agent with regard to what to do and where to do it. The court held that the labourer was an employee of the building firm despite discussions between the parties which may have suggested that their intention was that he was to be a self-employed labour-only subcontractor.

12. Another common situation in the building and construction industry is where there is an intermediary (such as a gang leader or a sub-contracting company) who contracts with the main contractor for the supply of labour and with the worker for the provision of the labour. In this situation, the worker is likely to be in the same position as temporary or agency workers supplied by an employment agency or business (see below).

Agency workers

13. An employment agency or business may supply the services of individuals to another company (their client) on a temporary basis. The working arrangement is usually for a limited period of time.

14. There are a number of possible employment arrangements for agency workers:

  • the worker may not be an employee at all;
  • the worker may be an employee of the agency/business;
  • the worker may be an employee of the company (the client).

15. If the client company pays the agency for the worker and the agency then pays the worker, this will point away from the worker being an employee of the client company.

16. If the contract between the worker and the agency states that there may be periods when no work is available and there is no obligation on the agency to find work for the worker or for the worker to accept it, this will point away from a relationship of employment between the agency and the worker.

17. However, whether or not the worker actually is an employee will depend on all the details of the relationship between the parties (particularly the terms of the contract document) and the application of the criteria detailed in the Contract of employment section. Employment status must be determined from full consideration of all the evidence: not only any relevant documents but also all the relevant evidence about the dynamics of the working relationship between the parties, including what was said and done.4

18. In one case5, it was held that there was no contract of employment where:

  • the agency was not obliged to find work;
  • there was no obligation to accept work;
  • the worker was free to register with other agencies; and
  • there was no holiday pay.

The court considered that the relationship lacked the elements of continuity and care associated with a contract of employment.

19. In another case6, the court held that there was no contract of employment between the agency and the worker where the worker was placed at a client company continuously for three years because the terms of the contract indicated that it was not a contract of employment and it was agreed that there would be periods between assignments where no work would be available.

20. The courts have made clear that agency/temporary workers can be employees of their agency or the company where they are placed.

21. Employment agencies and businesses have duties under the Employment Agencies Act 1973 and supporting regulations7 in respect of the suitability those seeking work for a particular position and their protection, including a requirement to obtain information on known health and safety risks. This legislation is enforced by the Employment Agency Standards ('EAS') Inspectorate8, not HSE, and you should notify the EAS Inspectorate of serious incidents involving agency workers as soon as possible in accordance with OC 84/5. You should continue to deal with the incident in accordance with HSE's procedures, including conducting an investigation where appropriate. The EAS Inspectorate has agreed to notify HSE if it proposes to take any action, so that it may be properly coordinated with any enforcement action being considered by HSE (see the OC above for further guidance).

Workers

22. As stated above, under employment law there is a third category of persons in respect of which a duty is held, besides employees and the self-employed - the category of "worker"9. This category does not 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 2007).

Office holders

23. The category of workers known as "office holders" includes police constables, prison officers, company directors, trustees, members of the clergy, trade union officials, magistrates and club secretaries. An 'office' is a permanent post which exists independently of the person who holds it.

24. Office holders are not traditionally considered to be employees. However, there are exceptions to this approach, for example, police officers are office holders but, by virtue of specific statutory provision10, are treated as employees for the purposes of health and safety legislation.

25. However, a person may be both an office holder and an employee at the same time, and a Court will consider all of all the relevant factors to determine whether this is the case.

26. In one case 11 the issue was the employment status of the secretary of a workingmen's club. The relevant factors were:

  • whether payment was by salary or honorarium (a grant);
  • whether payment was fixed in advance or related to the amount of work done;
  • whether there was a right to the payment or not;
  • if there was a right to payment, the size of the payment;
  • whether the individual was exercising the functions of an independent office or was the subject of close control;
  • the extent and weight of the duties performed (the smaller they are the less likely they are to be an employee); and
  • how payment was described and how it was treated for tax and national insurance purposes.

Volunteers

27. Volunteers are not employees, so if consideration is being given to proceeding against a dutyholder under section 3 HSWA in respect of risks to volunteers, you need to prove that the duty holder is "an employer", ie that in addition to the volunteers, there is at least one employee within the business/company.

28. If the dutyholder is not "an employer", you may be able to proceed under section 3(2) HSWA if the dutyholder is a self-employed person (as defined by s.53 HSWA).

29. In addition, section 4 HSWA, which imposes general duties on a person who has control of non-domestic premises, may apply in respect of risks to volunteers (or any other person) who use the premises, or plant or substances provided there.

Domestic servants

30. Section 51 HSWA states that Part 1 of the Act does not apply in relation to the employment of domestic servants in a private household. HSE cannot therefore enforce the provisions of HSWA against an employer insofar as those provisions relate to the employment of a domestic servant, nor against the domestic servant him/herself.

31. There is no case law that provides definitive guidance on when an employee is a 'domestic servant'. The following factors may, however, be considered in deciding whether section 51 might apply:

  • Whether the employee works for the upkeep and maintenance of a domestic establishment and for the convenience and comfort of those living there 12. It has also been suggested that domestic service might involve quite skilled roles and might not be limited to "housework";
  • The employee may be more likely to be a domestic servant if the employer is a member of the household or a private individual rather than, for example, a local authority or agency. The position might be complicated where the worker is employed directly by a private individual using money provided by a local authority. What duties exist will depend to a large extent on the facts of the case;
  • The work must be done at a private household, as opposed to premises such as a nursing or residential home. However, domestic servants need not live in the household where they work and may be employed in more than one household;
  • Section 51 will not apply (and Part 1 HSWA therefore will) in relation to any additional work carried out by the employee that falls outside the ambit of domestic service in a private household.

Footnotes

  1. Revenue and Customs Commissioners v Jones [2014[ ICR D43. Back
  2. Pola v R(HSE) [2009] EWCA Crim 655. Back
  3. Ferguson v John Dawson & Partners (Contractors) Ltd [1976] IRLR 346. Back
  4. Franks v Reuters [2003] EWCA Civ 417; TLR, 23/04/2003. Back
  5. Wickens v Champion Employment [1984] ICR 365. Back
  6. Pertemps Group plc v Nixon [1994] IRLB 488. Back
  7. The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (S.I. 2003/3319). Back
  8. Part of the Department for Business, Enterprise and Regulatory Reform (BERR), formerly the DTI. Back
  9. Section 230 Employment Rights Act 1996. Back
  10. Sections 51A and 52(1)(bb) HSWA 1974. Back
  11. Social Club v Bickerton [1977] ICR 911. Back
  12. Cameron v Royal London Opthalmic Hospital [1941] 1 KB 350. Back
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Updated 2020-09-18