Employee or otherwise

[nearlythere]

Employee or otherwise?

Private medical clinic offering specialised services owned and operated by two doctors. Third person who administers and manages the set up but is self employed. She is paid by the two for providing her administration and management services and she looks after her own tax and NI.

Is she considered an employee for the purposes of employee training etc etc?

Views please?

[Davo]

NT


She is a contractor, still owed an induction/duty of care and all that!
(seems an expensive way of doing things )

davo

[tmprojects]

If she is self employed she is legally not an employee.

I would say she would fall under Article 5(3)

(3) Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person referred to in paragraphs (1) and (2), who has, to any extent, control of those premises so far as the requirements relate to matters within his control.

She is not an employer in the workplace so she is not an RP, so article 22 does not apply.

The responsibility to ensure she is adequately trained  is her responsibility.
The responsibility to ensure she is adequately trained to be on that particular premises still rests with the RP (two doctors). This is clear within article 20

(2) The responsible person must ensure that any person working in his undertaking who is not his employee is provided with appropriate instructions and comprehensible and relevant information regarding any risks to that person.

Let’s be clear. It is NOT their duty to train her. It is to ensure she is trained, and that she receives site specific information and procedures.

[Mr. P]

I thought there was a legal bit about being self employed/contractor who is providing their services for long term basis to the person(s) - that you can only do this for so many weeks a year and must have a break (not holiday) from that employer (26 weeks?)

[kurnal]

In respect of fire safety legislation its all in article 20 in the English Legislation and article 19 in the NI legislation.

Provision of information to employers and the self-employed from outside undertakings
19(2) A person with duties under Article 25 or 26 shall ensure that any person working in his undertaking who is not his employee is provided with appropriate instructions and comprehensible and relevant information regarding any risks to that person.

(3) A person with duties under Article 25 or 26 shall—

(b)take all reasonable steps to ensure that any person from an outside undertaking who is working in the relevant premises receives sufficient information to enable that person to identify any person nominated by the person with duties under Article 25 or 26 in accordance with regulation 14(1)(b) to implement evacuation procedures as far as they are concerned........
 
Note that the duty is not training as such  - it is the provision of information in order to understand the risks they may face in the workplace and how to implement the evacuation procedures..


The general H&S Legislation will apply in respect of all other H&S issues other than in respect of General Fire Precautions. See the Management Regs et al.

[Mr. P]

Employee’ – “means an individual who works under a contract of employment or apprenticeship (whether express or implied and, if express, whether oral or in writing), and related expressions are to be construed accordingly; see also sections 11(3)(a), 12(2) and 13(3) (which apply for the purposes of...

{works under a contract} me thinks is the key point here?

[nearlythere]

(b)take all reasonable steps to ensure that any person from an outside undertaking who is working in the relevant premises receives sufficient information to enable that person to identify any person nominated by the person with duties under Article 25 or 26 in accordance with regulation 14(1)(b) to implement evacuation procedures as far as they are concerned........

I thought about that one K but in this situation is she an outside undertaking? If so can you say that one doctor is an OU to the other?

I can identify OUs as persons invited into the building to carry out maintenance and repairs to premises or services.

I certainly don't expect that any of the Orders take into consideration every conceivable circumstance. I don't think the legislators can consider every working arrangement and I can understand that. What we have is a situation which will not be that relevant until the enforcement authority has need to look at it and then ultimately only if pursued through the courts so the solicitors and barristers can get their cut.

What I'm leaning towards is that what we have is an employer (two doctors) and an Appropriate Person (your RP) with neither employing anyone.

[tmprojects]

NT.Wouldn't article 20 (2) be more appropriate in this instance.
 
(2) The responsible person must ensure that any person working in his undertaking who is not his employee is provided with appropriate instructions and comprehensible and relevant information regarding any risks to that person.

[nearlythere]

NT.Wouldn't article 20 (2) be more appropriate in this instance.
 
(2) The responsible person must ensure that any person working in his undertaking who is not his employee is provided with appropriate instructions and comprehensible and relevant information regarding any risks to that person.

Yep. Think you're right.