Employment Law

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Employment Law

The liability of employers at common law is merely an area which is an example of the practical use of the law of negligence…….

The common law has long recognised the need to impose a duty of care on employers to take reasonable care for the safety of their employees. In fact employers’ liability has one of the longest pedigrees of any tort. As we will see in this and the next two chapters the courts adopt a somewhat paternalistic approach in this area.

Employer’s liability concerns only employees; other workers, such as independent contractors, are covered separately. As a general rule, the level of protection offered to employees is higher than for other workers.

The most important feature of the duty of care imposed on employers is that it is personal and non-delegable. This means that regardless of whom the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer - he can delegate performance of the duty, but not liability for its breach.

The essential characteristic of the non-delegable duty is that, if it is not performed, it is no defence to the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty.

The burden of proof rests on the claimant and can be easier to discharge if an action is commenced alongside a claim for breach of statutory duty.

As far as employers are concerned, rather than relying on the basic formulation that a duty to take ‘reasonable care’ is owed, attention is focused on how the courts have actually specified the precise duties owed by an employer to his employees.

The contract between employer and employed workers involves, on the part of the former, the duty of taking reasonable care to provide proper appliances, to maintain them in proper condition, and so to carry on his operations as not to subject those employed to unnecessary risk.

In its most basic form there is an obligation on the employer to ensure that the workplace is a safe place for employees to be. This would obviously cover defects in the premises themselves, as well as hazardous activities taking place on them. This duty exists in relation to both the employer’s own premises, and any third party premises eg a window cleaner. However, the duty may exist but the standard will be lower in recognition of the ability of an employer to check third party premises.

The duty of care includes the provision of necessary safety equipment that an employer ought reasonably to provide. The duty to provide a safe place of work also extends to providing safe machinery, plant and equipment (including any necessary safety features and protective clothing). However, where employees object or refuse to use safety equipment, an employer may not be negligent for failing to enforce the use of that safety equipment.

Employment Law

The passing of the Employers’ Liability (Defective Equipment) Act 1969 bolstered the common law in this area It made employers liable for injuries sustained by employees by reason of defective equipment provided by the employer for the purposes of their business, even where the defect arose from the negligence of third parties (s1).

Alongside the 1969 Act there are various health and safety enactments that have laid down statutory duties, including:

1. The Health and Safety at Work Act 1974.

2. Workplace (Health, Safety and Welfare) Regulations SI 1992 No 3004.

3. Management of Health and Safety at Work Regulations SI 1992 No 2051.

4. The Personal Protective Equipment at Work Regulations SI 1992 No 2966.

5. The Provision and Use of Work Equipment Regulations SI 1998 No 2306.

6. The Health and Safety (Display-Screen Equipment) Regulations SI 1992 No 2792.

The employer has the duty to ensure that reasonable instruction is given to employees on how to do their jobs safely and effectively. There should also be a measure of supervision. The duty can, therefore, be split into two distinct parts - the duty to create a safe system and the duty to operate that safe system. The extent of instruction and supervision will vary with the kind of work being done and the risks attached to it. Obviously the greater the risk the more supervision/ instructions should be exercised/ given.

An employer has a duty to select and employ competent staff. If a member of staff behaves in a way that poses a continuing risk to the safety of others then it may be necessary to dismiss or re-deploy that person. Actions involving incompetent staff are usually taken under vicarious liability rather than employers’ liability but if the claimant is an employee you must remember the possibility of an action for the breach of this primary duty.

If an incompetent person is employed or required to do a job that they are not capable of doing then there will be a breach of the employer’s duty It can also be argued that an employer who knows or who ought to know of an employee’s habit of playing practical jokes could be in breach of his common law duty to provide competent fellow employees.

Where an incompetent employee injures a fellow worker then, in addition to an action against the employer for breach of this duty, there would also be the possibility of an action against the employee himself (though, financially, this would almost certainly be a waste of time).

Once a duty of care is established it is then necessary to examine whether there has been a breach. This is a question of fact in each case. Only a reasonable level of precaution need be taken, ie an objective test is used, based on the reasonable man.

Similarly, as with any other negligence actions, it is necessary to establish both factual and legal causation. A common situation where factual causation is relevant concerns the provision of safety equipment. If the employer fails to provide safety equipment causation will not be satisfied if he can show that, even if it had been provided, the employee would not have used it.

As in all negligence cases, reasonable foreseeability is utilised in employers’ liability. Though most cases involve physical damage, the courts have recognised mental harm such as stress. The injury itself must be of a recognised kind.

If an employee consents to the risk then his employer may have a good defence. However, judges are very sceptical of this defence in the employment context and it can only be successfully invoked in extreme circumstances where there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss.

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