Just when is a contractor really an employee?

Let’s say you as an employer hire someone who wishes to be regarded, for tax purposes, as a self-employed contractor who submits regular invoices to you. But in fact, as you both know, to all intents and purposes he behaves as an employee. He turns up every day and there is work for him.

And is a contractor whose working relationship resembles an employee responsible for their own health & safety systems?

Then you read in some pesky magazine that from a health and safety perspective, it is the principal’s duty to require all contractors to submit a health and safety management plan which demonstrates they acknowledge the hazards of the task and they have taken steps to manage those hazards.

Safeguard forum members discuss the anomalies

This was the conundrum posed on the Safeguard forum recently by a member who wanted to know if it was legal that these “contractors” have no health and safety system in place, and are instead inducted into and covered by the principal’s health and safety system.

One respondent suggested that a self-employed contractor need provide only a health and safety policy and an accident register, but recommended all such people immerse themselves in the principal’s health and safety culture and attend toolbox and other meetings arranged by the principal.

Another pointed out that the principal-contractor-subcontractor chain can stretch for many links, as each contractor turns into a principal when hiring subcontractors.

How the Department of Labour views the issue

Then it got tricky: two further respondents cited Department of Labour prosecutions brought following workplace accidents where it was found that so-called contractors were really acting as employees, meaning responsibility for their safety fell on the principal in the same way as for those employees actually on the principal’s payroll.

Someone else then pointed out that the Department of Labour is more inclined to prosecute up the chain of command rather than down, so it would be more likely to be the principal rather than a relatively minor contractor who felt the weight of the law.

The consensus

So the conclusion  is: in health and safety law as in broader employment law, watch out for situations where a supposed contractor is really working for you as an employee, because that is how the law will view it.

You can follow the full debate  here on the Safeguard forum.