'Employers' Liability? Opinions needed...

[Spongebob]

This one's a little outside my field of expertise, so I would appreciate your legal opinions.

I have no personal involvement - I am merely an interested onlooker.

'Phil' and 'Rob' are both carpenters, each running their own limited company from workshop premises which they share and for which they contribute equally to the rent and running costs. Each owns roughly half the machinery and equipment and they both use all of it as and when necessary.

For the last year or so Phil has had some casual help in the workshop in the shape of Jack, a twenty year-old lad keen to learn and earn. Jack has worked 2-3 days a week and has been paid cash in hand - no formal contract of employment exists and no deductions for tax and NI been made. I know for a fact that Phil operates without any insurance for employers' or public liability - or anything else for that matter other than his car. Jack has received no formal training in the use of tools or machinery.

Last week Jack had an accident and lost two of his fingers on a table saw he had been using (owned by Rob' company) while doing work for Phil's company.

How does Jack stand regarding any claim for compensation for the loss of two fingers?

How does Phil stand personally regarding liability for Jack's accident? Can he just liquidate his company and avoid any liability?

How does Rob (or his company) stand as the owner of the saw?

 

[Newchodge]

Questions:

Is the saw in good repair and with all the proper safety equipment?

Had Phil shown Jack how to use the saw properly?

Was Rob aware of Jack's presence and had he given him permission to use the saw?

Who asked Jack to use the saw?

 

[Spongebob]

Questions:

Is the saw in good repair and with all the proper safety equipment? Yes

Had Phil shown Jack how to use the saw properly? Yes

Was Rob aware of Jack's presence and had he given him permission to use the saw? Yes

Who asked Jack to use the saw? Phil

 

[Newchodge]

Hi Bob

If the answer to all the question is yes, how the hell did he loose 2 fingers?

 

[carl.atkinson]

This sounds very much like the type of question that I used to be asked at Law School and I am tempted to advise that you should do your own research.

If this is a genuine scenario there are a host of significant problems and I would expect that someone (probably "Phil", but possibly also "Rob") is going to have their collar felt by PC Plod so they should be getting an experienced criminal lawyer lined up as a priority.

Their will be a strong compensation claim against both Phil and Rob in favour of "Jack" based upon breach of statutory duty and negligence (take your pick from failure to supervise, failure to train employee, probably failure to operate safe system of work etc - long list). I suspect that Phil and Rob may ultimately take the view that it may be preferable to accept any personal liability for compensation in the hope that this may improve their prospects of staying out of jail.

The point about the liquidation of the company is only relevant if Jack was employed by a limited company and not directly and that is doubtful as he may well have been employed personally by Phil.

If Phil or Rob liquidate to avoid liability for compensation I think that they may be in beach of their fiduciary duties as Directors. I don't think that this would be a "get out of jail" card.

 

[Spongebob]

This sounds very much like the type of question that I used to be asked at Law School and I am tempted to advise that you should do your own research.

.

My research methods involve asking questions on internet forums!

Many thanks for your reply. It is indeed a genuine scenario involving a former business partner. I am very relieved that the partnership ended some time ago!

 

[carl.atkinson]

If your former partner is either Phil or Rob he has got some serious problems and that's before HMRC get involved.

 

[Spongebob]

Phil.

We fell out, but I take no pleasure from his apparent predicament.

 

[Spongebob]

Hi Bob

If the answer to all the question is yes, how the hell did he loose 2 fingers?

Table saw blades are very sharp. Jack clearly put his hands too close to the blade.

 

[Chris Ashdown]

Health and safety may also want a word

I don't really see what Rob has done wrong unless he was supervising him at the time and hopefully he had third party insurance himself covering his own workshop visitors

 

[Paul Baldwin]

Phil should have had Employers Liability cover and is, I would have thought, going to find himself in a bit of a legal mess. As far as Employers Liability regulations are concerned the definition of an Employee is not just someone on your PAYE. The law requires you to hold EL Insurance for people who you employ under a contract of service or apprenticeship. Labour only subcontractors working under your supervision, self-employed sales agents working exclusively for your company, apprentices, work experience students and volunteers are Employees in the eyes of the law.

Rob would have a legal duty to anyone using his equipment to ensure that it is fit for purpose and safe.

 

[UKSBD]

How long has Jack been working there cash in hand?
Is he declaring any of it, or claiming any benefits?