A company has been fined £225,000 and ordered to pay costs of £95,000 after the death of an agency worker under their supervision. The accident occurred during roadside litter-picking, whereby the agency worker pulled out from the verge on which the work was being undertaken to rejoin the main carriageway. The worker’s van was hit by an HGV.
The company was fined on the basis that its health and safety training was inadequate, the risk assessments undertaken were ineffective and the company were aware of the guidelines surrounding maintaining a safety zone around the verge but had failed to adhere to these.
This acts as a warning to agencies. It is common in client own contracts for agencies to be asked to indemnify the client against claims arising out of the acts and omissions of the workers. Clearly in this case, it was the client who was responsible for the safety of all its workers completing this job, whether they were company employees or agency workers. If agencies are providing indemnities to their clients, clients could be pursuing the agencies to recover costs in claims such as this – care should be taken to agree to such indemnities only where a) the agency has control over its workers or b) the agency has properly assessed their exposure to risks and understands the potential claims it is indemnifying against.
In addition to the above, recruitment companies are bound by the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“Conduct Regulations”). Within the Conduct Regulations, agencies are required to obtain information from both candidates and clients to assess whether it would be detrimental for either party to carry out the work. If an agency becomes aware that there is a particular risk in a candidate filling a given role, the agency should be discussing this with the candidate and trying to establish ways to minimise these risks with the client. If the agency is aware that the candidate is unsuitable for a position, the agency has a legal obligation to end the supply.
For further guidance on indemnity clauses, health and safety obligations and the Conduct Regulations, please contact one of our consultants on 01273 236 236.