Sunday, 25 October 2021 14:37

Brodies - The Legal View - Freelance workers and contractors - onsite injury responsibility

Lynn Livesey

Can a company that engages the services of a freelance worker who subsequently injures themselves on site be held liable for their injury?

A common refrain heard from contractors and subcontractors when an accident occurs on site is “he doesn’t work for us” or “we don’t employ him”. While there may not be a traditional employer-employee relationship, and the individual may even describe themselves as “self-employed”, health and safety law will look beyond the title to determine whether the company can be considered a de facto employer and therefore be potentially liable for their injury.

The key tests which are applied in determining the true nature of such relationships are the extent to which the worker is integrated into the company’s business, and the extent of control exercised over the worker.

The court will consider a variety of factors when determining whether the worker can be considered an employee. Such factors include: whether the worker is engaged via an agency; the frequency with which the worker works on site; the period for which he has been working on site; the means of remuneration; who the worker receives instructions from; whether he receives statutory sick pay, and whether he supplies his own tools and equipment. There is not one key determining factor, and the court will make an assessment of the relationship taking into account all of the circumstances of each case.

It is possible that even though an individual describes themselves as ‘self-employed’ and the company does not pay income tax or national insurance contributions for the worker, the court may still deem the company to be an employer. For example, in terms of health and safety law, a company could be held liable for a workers injury if it provided the worker with personal protective equipment, and/or supervised and instructed the worker on how to do their work.

Against this background, those who engage temporary or self-employed workers must ensure that they have a proper understanding of the relationship with those workers. If the company considers that it may be deemed an employer in terms of health and safety legislation then it must ensure it understands its obligations under such regulations. To take a few examples, employers have obligations under the Personal Protective Equipment at Work Regulations 1992, the Manual Handling Operations Regulations 1992 and the Management of Health and Safety at Work Regulations 1999.

So, if the freelance worker was deemed to be an employee of the company, and the company had breached one of the above regulations then it could be held liable for the worker’s injuries following the accident on site, notwithstanding the fact he was a so called ‘self-employed’ worker.

Lynn Livesey is a senior solicitor in the Insurance & Risk team at Brodies LLP. You can contact her on 0141 245 6291 or at lynn.livesey @ brodies.com

If there are any topics you would like us to cover in future columns, please email us at legalview @ brodies.com.

The information in this article does not constitute any form of advice or recommendation by Brodies LLP and is not intended to be relied upon by you in making any specific decisions or taking (or refraining from taking) any action. If you wish us to give such advice, please contact the author.

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