Thursday, 09 September 2010 09:55

EMPLOYMENT - SEPTEMBER 2010

Definition of an “employee”Employment_Agreement

In a recent case, a property developer tried to wriggle out of a prosecution by claiming that health and safety legislation didn’t apply to him because he wasn’t the injured party’s employer. Did he get away with it?

The law – what’s that then?

Mr Pola (P) was part of a family firm of property developers and was in charge of a building extension and refurbishment project. However, P saw fit to pay those working for him – who were mostly Slovakian - £25 to £30 a day in cash. And he wasn’t keen on complying with employment law, paying tax, nor, surprisingly, health and safety legislation. In fact he didn’t take any steps to ensure the safety and wellbeing of those involved in the project.

Accident waiting to happen

Due to the site being so poorly managed, the inevitable happened and there was a serious accident. Mr Dudi (D), who was working on the site, was hit on the head by a falling concrete lintel and nearly died.

Fine, jail and £90,000 compensation

In court, P was convicted of offences under the Health & Safety at Work etc. Act 1974 (HSWA) and the Work at Height Regulations 2005. The judge ordered P to pay a small fine and to serve a jail term of six months. The court also made a compensation order in D’s favour of £90,000; at least half of which should be paid by P within the next six months.

Not an employer

P appealed. He didn’t agree that he was an employer as the prosecution had suggested, meaning that he wasn’t guilty of either of the two offences. Nearly two years after the original case was heard, the Court of Appeal considered the position.

Now P took an interest in the law

In his defence, P tried to argue that as no contract of employment existed, D was under no obligation to turn up for work, and so he couldn’t be regarded as an employer. However, the court ruled that it was “fanciful” to suggest that workers who had been taken on for the day, and expected to be paid at the end of it, would feel free to leave. P lost the appeal.

Definition of an “employee”

s.53 of the HSWA states that an “employee” means  “an individual who works under a contract of employment”. The rules are as follows:

 

1. There must be “mutual obligation” between the worker and the defendant (a contract).

2. The contract must be one of employment, i.e. in return for payment the worker placed themselves under an obligation to work.

3. The worker must be under the control of the defendant – otherwise the contract is one for “services” and does not count as employment.

 

Tip 1. Follow the principle that if you have control over the way in which others carry out their work, you will be considered to be their employer under health and safety laws. Temporary and casual workers should be looked after just as well as other employees. Length of employment doesn’t come into play.

Tip 2. Your duty of care to ensure your work activities don’t put employees at risk extends to anyone else who may be affected by your actions. These include agency workers, members of the public and those employed by others.

 

 

The case was lost as the property developer was deemed to be the employer. Follow the principle that if you have control over the way in which others carry out their work, you’ll be considered as their employer under health and safety law.

 

 

Source and Ref: © 2010 Indicator Limited