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Coronavirus: the health and safety of self-employed and agency labour

Gateley Legal

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Government has recently announced that it will offer a package of financial support for self-employed people who are no longer able to work, although the detail of how the scheme might work has yet to be released. 

If as a business:

  • you are continuing to use self-employed or agency labour to provide services for your business; or
  • you are a business which supplies such labour

health and safety considerations during the current COVID-19 crisis should be at the forefront of your mind when you either use or place such labour. 

An overview of the issues to consider is set out below.

Are there any restrictions under the new Government guidelines about using self-employed / agency labour? 

There is currently little restriction on self-employed people working if they are unable to do the job which they usually do from home. This assumes the industry in which the self-employed person works is currently still permitted. 

The current guidance suggests continuing to work as a self-employed person or agency worker will not be an issue if the job can be done within social distancing parameters.  

Health and safety law applies in all circumstances where an employer utilises self-employed or agency labour:

  • Under section 3 Health & Safety at Work Etc Act 1974 an employer must safeguard the health, safety and welfare of all persons affected by their operations and they have a duty to do all that is reasonably practicable to protect persons from any harm from their operations. 
  • COVID-19 is a potential harm. Therefore in addition to all the usual steps an employer must take concerning health and safety, additional measures will be required which should include protection from the risk of contracting the virus (handwashing on arrival and at other key points, appropriate signing in procedures, 2m distance from other at all times, enhanced hygiene in food and bathroom facilities etc);
  • Any employment agency through which the labour has been provided owes the same section 3 Health & Safety at Work Act duty to the worker. 

Employment agencies usually carry out this duty by undertaking due diligence on clients to ensure they have appropriate H&S procedures in place and by confirming that the Client will be responsible for risk assessments and providing safe systems of work. 

In the current environment, it will be incumbent on the employment agency to check what protections are in place to deal with coronavirus issues 

Other considerations

Both the employer and the employment agency owe duties of care in negligence to the agency worker / self-employed person.

A claim could potentially arise if in due course the self-employed person/ agency worker can demonstrate they contracted COVID-19 whilst undertaking work for you/whilst on your premises. Whilst this may be difficult to prove, ensuring  the necessary Covid 19 protection measures are in place will reduce the chance of any such claims arising. 

Ensuring you have all the appropriate protections in place is likely to be also key to any relevant employers liability/public liability insurance policy – in the event of claims arising in the future insurers will expect all relevant guidance to have been adhered to if cover is to be provided.

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