Self employed sub contractor cut his finger off

[hazzard a guess]

hi
so i have a sub contractor that works for me full time - he has his own van but carries my stock and my tools
i pay him a day rate and commision and never lay him off when quite

whilst on a job he cut his finger off - on my machine that from his own admission was not using correctly

he has had surgery and it has been sewn back on but it looks like its going to be a long process until his back at work
( i am not paying him full wages - but am putting something through his door each week to keep him going)

i do have insurance in place - and my insurers say that i am covered !!

However
i have been a man in a van tradesman for many years - and its only recently (last 18 months) i have had this guy help me out
i have no contract with him and i havent pat tested the machine in question (all though this wasn't the reason he chopped his finger off) - i have no accident work book
and his undergon no formal training on the machine from me - although he used to own one him self and knows how it should work

basically he is a skilled workman in our industry - he subs to me - i give him work each day and he goes and does it

we get on and we both play the game and i look after him - but legally am i ok here ?

does he have a claim and because i havent implemented workplace procedures ?

 

[Newchodge]

Bloody hell. Get legal advice now.

What makes you think he is self employed?

Do you have employer's liability insurance?

We both play the game. Meaning you both ignore the law?

 

[hazzard a guess]

his self employed - because well his self employed - i pay him a day rate - if he dont come to work he dont get paid - he either chooses to work for me or not --its the case that he always does

i have all insurance - including stock and liabilities

what laws am i ignoring ?

 

[Newchodge]

his self employed - because well his self employed - i pay him a day rate - if he dont come to work he dont get paid - he either chooses to work for me or not --its the case that he always does

i have all insurance - including stock and liabilities

what laws am i ignoring ?

Bloody hell. Get legal advice now.

There are so many that I cannot begin to tell you.

You and him agreeing he is self employed does not make him self employed. That is the first. The relationship between you is (to me) an employment relationship in law.

You need to see an employment lawyer urgently.

Your insurer says you are covered???? For what? What kind of insurance are you talking about?

 

[hazzard a guess]

i have employers liability - public liability - and i insure the stock cost me about £1500 a year
hhmm - i will call a lawyer

 

[Mr D]

his self employed - because well his self employed - i pay him a day rate - if he dont come to work he dont get paid - he either chooses to work for me or not --its the case that he always does

i have all insurance - including stock and liabilities

what laws am i ignoring ?

If he comes in when he wants, goes when he wants, can send someone else to do the work, wears own clothes, uses own tools, invoices you a lump sum for work then yes probably self employed.
Some employers say they use self employed but in all ways besides payroll treat the people as employees.

Back to the issue at hand, would certainly look to prevent anyone else injuring themselves on equipment. And get an accident book - and record accidents in it.
Have been to workplaces where accident book is unused, stuff never recorded.

 

[Newchodge]

i have employers liability - public liability - and i insure the stock cost me about £1500 a year
hhmm - i will call a lawyer

If he is not an employee, employer's liability is irrelevant. He certainly is not a member of the public, so public liability is irrelevant. and he is certainly not stock ....

Sorry to sound scarey, but you really need proper advice.

 

[KAC]

You need to take care with the words you use. You say he "works for me full time".
You say you "never lay him off when quiet"
You say he uses "my tools"
You say you are "putting something through his door each week to keep him going"

These all point towards your worker being an employee and not an independent contractor

 

[Newchodge]

You need to take care with the words you use. You say he "works for me full time".
You say you "never lay him off when quiet"
You say he uses "my tools"
You say you are "putting something through his door each week to keep him going"

These all point towards your worker being an employee and not an independent contractor

While you are right about the use of words, if the words used reflect the reality, the words are not the problem!

 

[paulears]

The machine that cut off his finger is yours, therefore you are responsible for making sure it is safe. The fact you mention PAT suggests you haven't got a grip on this, as PAT is only concerned with electrical safety, and is not even a requirement, just good practice. I assume you have had the powers that be in as losing a finger is a reportable incident, so you documented it and sent in the incident report that detailed the cause of the injury? They normally investigate where machinery is involved to determine if you put into place suitable control measures and will be looking at your risk assessments. it doesn't matter one jot if the injury was caused to an employee, or a sub-contractor on your promises using your equipment - was the process they carried out safe? Was the finger loss his fault 100% - as in he didn't follow your documented working practices for a machine with the capability to injure or cause death. As a self-employed contractor he should have had insurance. Has he submitted invoices for work he hasn't done? These kind donations you made seem to have no status apart from how they would be seen by a court. Not your fault, not your employee, yet you are paying him - that's either sick pay, compensation, or hush money. No invoice but payments seems very strange.

Ten years ago, I made a stupid mistake on a clients property, during a callout that damaged both hands and my shoulder. The hands repaired well, but three operations on the shoulder later, I still have pain. The client - who I still do regular work for has no insurance that would cover me, and my own insurance doesn't;t cover things like this. The mistake was entirely mine - a lapse during a hectic moment. The client's equipment was tested and inspected a few weeks before and he was not responsible for me being stupid. In your case - if the equipment that chopped of the digit was in good order, regularly maintained and the cause of the incident simply operator error, then the blame stops with him. If your safety processes are flawed, no validation of safety training provided is present and his injury caused by lack of specific control, then a court could decide you are fully or partially to blame.

In my case I could have claimed that the client didn't train me, but difficult when I actually wrote the rule book, and conducted the training. I just didn't follow my own rules - stupid! I suspect the pleas to get proper advice is the right one. Losing a finger is bad - portioning out blame tricky.

 

[SteveHa]

Based on what you have said, almost certainly an employee, and if HMRC's attention is attracted and they come looking, they would almost certainly say the same. Of course, it may take something special to attract HMRC's attention, such as a grievous injury.

 

[Import Expert]

RIDDOR completed?

 

[MBE2017]

Was your sub contractor/employee correctly trained in the use of the machine?

 

[bodgitt&scarperLTD]

What machine was it? Circular saw? I don't know any companies who put their guys through training on these. Even the local (over zealous) estate has their guys do chainsaw, strimmer and asbestos awareness courses, but not circular saw.

Accidents happen. But given the amount of safety features on a modern circular saw, I'd say that unfortunately he must have been doing something prettty silly. We've all done silly things, and most of us get away with it. Lucky they could sew it back on.

I'd start by making sure the saw had all the correct safety features, all working.

And if you pay him money, as Paul says, make sure it's cash.

 

[paulears]

Where have you been? Your training 'idea' seems completely misunderstood. There doesn't have to be anything to put people through? You simply get somebody who is competent to brief the person who need to use the kit on the essential features, and record it for posterity. You will probably file this with the risk assessments you have carried out to satisfy the legal duty of care responsibilities. You don't HAVE to do this, but risk assessments are a necessary part of today's practice. The High Court decide the value of your insurer's payout and I can assure you the paperwork is a vital part of this process. Most people who have had a near miss with a circular saw don't do it again - and it means those that have simply not had an incident (not not accident, as this pre-empts the decision on blame) are on borrowed time. I get shown how to use kit I'm very competent with all the time by places I visit. It's standard practice now. "Just checking you know ......." I used to get grumpy. With my own accident, and a close friends far, far more serious one it's just not funny any more.

In his case. The owner of the equipment, the owner of the premises and the person paying his invoices are all in court still - arguing about who's insurance company are valid to X%, and it is NOT funny.

 

[Mr D]

Where have you been? Your training 'idea' seems completely misunderstood. There doesn't have to be anything to put people through? You simply get somebody who is competent to brief the person who need to use the kit on the essential features, and record it for posterity. You will probably file this with the risk assessments you have carried out to satisfy the legal duty of care responsibilities. You don't HAVE to do this, but risk assessments are a necessary part of today's practice. The High Court decide the value of your insurer's payout and I can assure you the paperwork is a vital part of this process. Most people who have had a near miss with a circular saw don't do it again - and it means those that have simply not had an incident (not not accident, as this pre-empts the decision on blame) are on borrowed time. I get shown how to use kit I'm very competent with all the time by places I visit. It's standard practice now. "Just checking you know ......." I used to get grumpy. With my own accident, and a close friends far, far more serious one it's just not funny any more.

In his case. The owner of the equipment, the owner of the premises and the person paying his invoices are all in court still - arguing about who's insurance company are valid to X%, and it is NOT funny.

I was still getting how to lift a box training years after no longer lifting boxes at work.
We have equipment to lift boxes now. And not bothering to try lifting a 200kg box by hand.
Yet every site, every place going to be working has its own how to do stuff training.
As standard.
Annoying for site supervisor but they get more annoyed at accident paperwork and angry women.

 

[KAC]

if he dont come to work he dont get paid

( i am not paying him full wages - but am putting something through his door each week to keep him going)

Not too sure how these comments fit together

 

[ecommerce84]

Something tells me the finger of blame won’t be pointing in you direction.....