Need for written h&s statement if company has at least 5 staff (inc 1 "worker")

PHILANTHROPIST

Just wondering if any members may be able to answer this somewhat academic query.

A friend of mine works in a company who employ 7 staff, but only 4 of them are definitely categorised as "employees". The remaining 3 staff appear to fall in to the grey area of being designated as either self employed or "workers" or even possibly employees.

The 3 staff whose employment status is somewhat unclear (unless of course they wish to seek the opinion of an ET judge) have been working in the organisation for at least 2 years, albeit on an informal "contract for services" basis, and as far as I am aware they do not work for anybody else. Although the determination of employment status requires more thought and further detail (eg are such staff bound by company policies and procedures such as a disciplinary policy etc). Based on my knowledge of determining employment status I would say that the the 3 other staff are likely to be designated as workers and may have somewhat of an argument to be classified as being employees, which of course would afford them substantial employment rights.

Anyhow, the company owner was asked by one of the (confirmed) employees why the organisation do not have a written Health and Safety Statement. Although it may be good practice to do so the government guidance (see link below) states that you only need to have a written statement if you have at least 5 employees.

http://www.hse.gov.uk/simple-health-safety/write.htm

So my query is as follows - what happens if a company have 7 staff, but the employment status of three of them is somewhat ambiguous. To be safe and to accord with best practice the company could prepare a simple H&S statement. However, when asked to do so by the above employee, the owner simply said that the company had no interest in wasting time on such a task.

I will in any event call HSE tomorrow to seek clarification re the above, but the HSE are not experts in employment law, and they may also be confused as to the difference between 7 staff who may or may not include a mix of employees and workers etc.

Thus I wondered if any member has ever encountered such a scenario and what (if any) was the outcome.

Any constructive input welcomed.

ohreally

I would suggest that given the situation outlined above there isn't a duty to have a written policy due to the employment status.

I would also point out...

Every organization should have a clear policy for the systematic
management of health and safety so that health and safety risks may be effectively addressed and controlled

I suspect any subsequent policy document may be in danger of simply becoming words on paper.

PHILANTHROPIST

ohreally wrote: »

I would suggest that given the situation outlined above there isn't a duty to have a written policy due to the employment status.

I would also point out...

I suspect any subsequent policy document may be in danger of simply becoming words on paper.

Yes, looking at the book you refer to - Introduction to Health and Safety at Work by Hughes and Ferrett - Sn 2.2 goes on to say :

.... " This does not mean that organizations with four or
less employees do not need to have a safety policy – it
simply means that it does not have to be written down.
The number of employees is the maximum number at any
one time whether they are full time, part time or seasonal[/B]."

The above statement, if accurate, only adds to the confusion. As far as I am aware "seasonal" staff are typically not employees and are hired on an as need be short term contract basis.

The company to which I refer in this thread also have 5 regular volunteers, some of whom have helped out for many years - surely their Health and Safety is as important as that of seasonal staff !?

Also if a H&S policy is not written down, then what is the alternative if one raises a related query of the owner. Are they meant to memorise the company's H&S policy, espouse a load of drivel, or just stay silent !?

NeilCr

This

http://www.healthyworkinglives.com/advice/Legislation-and-policy/Workplace-Health-and-Safety/health-safety-policy

would seem to indicate that it is only employees (not workers) that "count". And, not volunteers

Whatever you may think of the HSE I do think they are your best reference point

PHILANTHROPIST

NeilCr wrote: »

This

http://www.healthyworkinglives.com/advice/Legislation-and-policy/Workplace-Health-and-Safety/health-safety-policy

would seem to indicate that it is only employees (not workers) that "count". And, not volunteers

Whatever you may think if the HSE I do think they are your best reference point

That's also helpful, thanks.

BTW I did not wish to appear in anyway critical of the HSE, I was merely indicating that their helpline will be unlikely to have any detailed understanding of the minefield that can be employment status.

Anyhow, what is clear is that, written statement or not, H&S policy or not, the employer has a duty of care in that regard as per the commonly referenced implied term in a contract of employment. My friend has sadly suffered a work related injury, but is currently being fobbed off.

Savvy_Sue

PHILANTHROPIST wrote: »

Also if a H&S policy is not written down, then what is the alternative if one raises a related query of the owner. Are they meant to memorise the company's H&S policy, espouse a load of drivel, or just stay silent !?

The bottom, top and middle line of any H&S policy is that it's everyone's responsibility to take H&S seriously.

Often, using common sense is all that's needed, but as we all know, sense is not that common. I'm fairly hot about trip hazards around the office - a colleague was once offended when I suggested that the best place for her knee high boots was either on her feet, or under a desk / chair, rather than abandoning them in the middle of the room for me to fall over. Coats hung over open fire doors so that they won't close if the fire alarm goes off is another personal favourite. Handbags left with the handles spilling into the space between desks is another delight.

However. I'm sorry your friend had an accident. The absence of a written policy doesn't remove the need to have one. Was the accident waiting to happen, ie everyone knew that X was unsafe but just kept doing it because it had always been done that way? Or had a safe working practice been identified but ignored?

How long is your friend likely to be off work? Is the accident reportable under RIDDOR?