The Corporate Manslaughter and Corporate Homicide Act 2007 that came into force on 6 April has focused organisations’ minds on their health and safety obligations. So what health and safety obligations do employment businesses owe and to whom?

The consequences
The responsibility of an employment business for the health and safety of the work-seekers on its books is onerous. If the work-seeker is considered to be an employee of that business, that burden increases.

The employment business will become responsible for the provision of appropriate health and safety systems, training and equipment for individuals placed with an array of different client companies and potentially in a wide variety of different work environments.

Even if a work-seeker is not an employee of the employment business, it nevertheless has health and safety responsibilities for the work-seeker.

A failure to meet health and safety obligations is a criminal offence, punishable with unlimited fines and, in certain cases, custodial sentences. Importantly, fines arising out of a criminal prosecution cannot be met by insurance cover.

In addition, where there is an employment relationship, a duty of care arises, a breach of which may give rise to a civil claim for damages. Depending upon the damages sought, this could ultimately end up as an even more expensive (if insurable) risk.

Consequently, an employment business must take care when placing work-seekers.

Employer or not?
Recent case law suggests that, where the contractual arrangements between the end-user (client), the employment business and the work-seeker adequately set out the relationship between them, and that relationship is not a sham, the courts will rarely interfere.

Nevertheless an employment tribunal/court may conclude that the work-seeker is an employee, even if the contract between him/her and the employment business expressly states otherwise, if the reality of the relationship is that it is that of employer/employee.

So what can an employment business do to protect itself?
Legal responsibility for the health and safety of employees or non-employees cannot be simply delegated by contractual provision but is limited to that which is reasonably practicable to do.

Dealings with client companies, therefore, will need to balance doing everything reasonably practicable to protect the work-seeker while ensuring that an employment relationship is not implied.

Consequently, contracts with both the work-seeker and the client company should be explicit as to the intended relationship and the relative obligations between the parties.

A contract with a work-seeker should make it clear that:

• it is not a contract of employment; and
• there is no obligation on the employment business to offer work nor on the work-seeker to accept any work offered.

The contract with the client should clearly specify:
• the role the work-seeker is taking;
• the extent to which the client will have control and supervise the work-seeker;
• the client company's obligations to run a full and effective health and safety regime.

To demonstrate that all reasonably practicable steps have been taken to protect its work-seekers, employment businesses should:

• assess the work-seeker's capabilities and qualifications;
• collect sufficient information from the client about the specific health and safety requirements both of the role and generally;
• review this information to ensure the work-seeker is appropriate for the role and will be safe in the hands of the client.

If the work-seeker is particularly vulnerable, for example pregnant, the employment business may need to seek further information from the client.

Conclusion
Employment businesses should ensure they understand the work-seeker's capabilities and are satisfied that their client will protect the work-seeker's health and safety.

How the obligations are met will be highly dependent upon the circumstances of each case. However, well-drafted contract terms and statutory-compliant, information-gathering processes are a minimum starting point.