Employers Obligations & Liability For Employees Health and Safety

This report offers advice to SME (Client Company) in regards to its obligations towards employees under Health and Safety Laws. This involves identification of the main areas which employers owe a duty towards its employees. The report will also explore liabilities which will arise due to employers failure to comply with the health and safety of their employees while they are carrying out their work duties and advise on liabilities proportionality to risks paused by the work activities are considered and conclusions are drawn.

Introduction

There are a vast number of different statutes governing safety issues, but health and safety is not only governed by legislation. Under what is known as ‘common law’ all employers have a duty of care imposed on them to protect their employees. There is also a term implied into all employment contracts requiring employers to take care of their employees’ health and safety.

The Employer’s obligations for the employees’ safety have undergone an interesting development in both the common law and statutory legal frame work. This paper will examine the main areas of employers’ liability towards the health and safety of its employees while they are carrying out their work activities.

There are three key areas in which employer’s can incur liability for harm done to an employee. The first is vicarious liability, which can arise when one employee injures another and the law requires the employer to take responsibility. The second arises where an employer has a statutory duty to protect the safety of employees, as a result of legislation such as the Health and Safety at Work Act 1974. The third type of liability comes from the common law rules which impose on employers a personal duty to take reasonable care of their employees’ safety with regard to work.

COMMON LAW DUTIES

At common law the duty of care translates into an implied term of the contract and an employer has a duty in law to see that reasonable care is taken to ensure the safety of employees; the duty is essentially the same as the usual duty of care of negligence . Evolving in the civil courts, the employer’s duty of care to each of his employees can conveniently be considered as outlined below. The classic exposition of the duty was given by lord Wright in Wilson &Clyde Coal Co Ltd v English [1938] AC 57.In this case the plaintiff miner was injured at the defendant’s coal mine . He was travelling through the pit at the end of a day shift and was crushed when the haulage plant was set in motion. The equipment should have been stopped during travelling time. The defendant’s employers argued that they had discharged their duty in providing a safe system of work by appointing a competent and qualified manager. It was held: (HL) the employers were liable. They could not avoid their duty to provide a reasonably safe system of working by delegation to a competent employee.

From the above case the House of Lords deduced three key areas from the case in which this implied duty lies. These require that an employer must provide:

competent and safety conscious staff.

adequate safe plant and equipment

a safe system of work

a safe place of work

a) Competent Staff

The employer has an obligation to select competent fellow employees, and a correlative duty to give them proper instruction in the use of equipment and failure to do so ,an employer may be liable .This also occurred in Hawkins v Ross Castings Ltd,an employee sustained an injury as result of molten spillage due to a seventeen year colleague’s fault at work. Another incident to the heading of competent staff is the actual behaviour of employees where by acts of mischief or larking can be of particular danger as witnessed in Hudson v Ridge Manufacturing [1957] 2 All ER 229, a practical joker whom the employer knew about and failed to take reasonable steps to deal with it . The employer is also liable if the employee is injured in the course of his employment this occurred in Harrison v Michelin Tyre Co [1985] 1 All ER 919

If an employer knows or can foresee that acts being done by employees might cause physical or psychiatric harm to a fellow employee, it is arguable that the employer could be in breach of duty to that employee if he did nothing to prevent those acts when it was in his power to do so. See: Waters v MPC (2000) 27 July

b) Adequate Safe Plant and Equipment

An employer has a ‘duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition’ (per Lord Herschell, Smith v Baker [1891] AC 325, 362). If necessary equipment is unavailable and this leads to an accident the employer will be liable . Section 1(1) of the Employers’ Liability (Defective Equipment) Act 1969 (which reversed the decision of the House of Lords in Davie v New Merton Board Mills [1959] AC 604) makes an employer liable if an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by the employer, and the defect is attributable wholly or partly to the fault of a third party, whether identifiable or not.

However ,in some cases this duty will include the responsibility to warn employees that protective clothing must be used. This applies even where there was no knowledge of there being a fault. This is a true departure from the common law perspective and yet not a measure into effect with the introduction of the Employer’s Liability (Defective Equipment) Act of 1969. Hence, all the faults in equipment to be attributable to the employer where a third party has been negligent. However, in order to meet financial costs /needs to this obligation, insurance is actual obligatory for such actions pursuant to the Employer’s Liability (Compulsory Insurance) Act 1969. In light of justice the employer or the Insurance Company can sue the manufacturer. In R v F Howe , an employer pleaded guilty to four offences under the HSW Act 1974 It was alleged that the organisation failed to carry out regular checks and take appropriate measures . This was upheld in another case with similar facts and this case increased concern over occupational health of employees see: R v Friskies Petcare.

Another facet occurred in Dugmore v Swansea NHS Trust, an appeal against dismissal of a claim for damages arising from consequences of latex allergy, It was held there was an absolute duty under Reg 7 (1) of both the 1988 and 1994 Control of Substance Regulations and the employer was liable in that the Trust had either failed to have knowledge of the risk of allergic reaction to latex gloves or had underestimated the risk and taken no precautions against it .

c) Safe System of Work

It is a question of fact whether a particular operation requires a system of work in the interests of safety, or whether it can reasonably be left to the employee charged with the task. It is usually applied to work of a regular type where the proper exercise of managerial control would specify the method of working, give instruction on safety and encourage the use of safety devices. See: Speed v Thomas Swift & Co [1943] 1 All ER 539 and General Cleaning Contractors v Christmas [1952] 2 All ER 1110

The whole idea however, is that the employer must devise a suitable system, instruct employees what to do and supply any implements they may require. In doing all this the employer must take care to see that the systems is complied and bear in mind that employees are careless for their own safety. This obligation is twofold that is the employer must tell the employees the location of safety equipment and the employer must strike a balance between the obvious and the non obvious of what the workers know and what they should know. Employers are also obliged to warn employees of risks and appropriate procedures. For example if employees make a decision not to take precautions and if the risk is obvious then the employer is not liable. However, despite any decisions on the part of the employee any risk that is not obvious will rest with employer. The approach is ideal as this presupposes the authority of the employer and superior knowledge and at the same time acknowledges the autonomy of the employees for which the employer should not be held liable. In Jeffrey v CMB , in this case an employee brought a claim of industrial deafness and employer was found liable on the fact that the employer took no physical steps to protect the employees hearing or provide any form of warning.

Stress at Work & Bullying

A further and a more recent application of safe system of work is that the employer must refrain from making the employees work excessively long hours and cause unnecessary level of stress that could arise as a result of insufficient staffing and the even more serious occurrence of bullying at work place . All these changes gave rise to an innovation in liability for the psychological injury / harm that employees could sustain and especially y in this era of great pressures in work places , this would have been a far more applicable head of claim to a larger number of employees than that of liability for physical injury on its own. However, the most two recent cases in this issue gave rise first of all, limitation and outright exclusion of heads of claim concerning stress at work . An eelier limitation to this effect was witnessed in Hutton v Sutherland in which it was held by the Court of Appeal that there had to be” clear indications of impending harm” arising from stress. Thus, means that there has to be a balance between the likelihood of the injury to happen and the cost to the employer in protecting his employees . In a latter case of Barber (A) v Somerset County Council (R), this involved a teacher suffering from stress and the House of Lords rejected the idea of placing a duty of care to the employer. It was held that : “The school is entitled to expect, and also , that the teacher ,an adult will take his own decisions as to whether he needs to consult a doctor and will, if advised by the doctor take time off…”

SAFE PLACE OF WORK

An employer must take such steps as are reasonable to see that the premises are safe for the safety of its employees . Although this was not mentioned by Lord Wright in Wilson & Clyde Coal (above), it has been accepted by the courts, eg Lord Greene MR in: Davidson v Handley [1945] 1 All ER 235, 236 ; As for the extent of the duty, see: Latimer v AEC Ltd [1953] 2 All ER 449

The employer is also under a duty with respect to the premises of a third party even though he has no control over the premises, but the steps required to discharge this duty will vary with the circumstances. See: Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265

Cook v Square D Ltd [1992] ICR 262, 268 and 271

A duty may be also owed by an employer under reg.5 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 3004).

This also constituted an obligation towards the employer to provide adequate reporting system. More recently, this has a potential to extend to instances of long term injury such as passive smoking as it has been established that employees have a right not to be exposed to smoky environments at work places in Waltons and Morse v Dorrington this would amount to, a step in the right direction but ,a question now arises as to how far this duty aught extend .

STATUTORY DUTIES

These common law duties are now incorporated into statutory law under s. 2(2) of HSW which has extended the employer’s obligations to the provision of training, instruction and information in sufficient detail to enable the employee to understand the hazards faced and be familiar with the techniques for avoiding them.

These obligations have been further extended by the requirements of the Management of Health and Safety at Work Regulations 1992 (MHSWR) under which employers must carry out assessments of all operations and processes that present a potential risk to the health and safety of employees. Additionally, they must include working procedures and proper organisation to meet health and safety responsibilities and ensure that they have available to them adequate and competent assistance on health and safety matters.

General Duties

The HSWA 1974 sets out the general rules applicable to the entire employment spectrum under s 2 (1) of the Act ,which is as follows:

“It shall be the duty of every employer , to ensure , so far as reasonably practicable, the health. Safety and welfare of all his employees”

Further to this more specific obligations are laid out under s 2 of the Act ,which encompass the “ provision and maintenance of plant and system of work so that they are safe and without risk to health”. Under the same section of the Act , there is also the following provisions:

Use, handling and storage

Health and Safety at Work 194 ,requires the employer to make arrangements for the safe use, handling and storage of substances and equipment. The Manual Handling Operations Regulations 1992 (MHOPR) advocated the elimination of manual handling, but where this cannot be achieved requires the risks from handling to be assessed and precautionary measures taken to prevent injury.

The supply of machinery (Safety) Regulations 1992 (Machinery Regulations) lays down that new plant and equipment must be designed so that it is stable when in use and being moved, or arrangements made to ensure it sill be stable. Adequate and suitable handling equipment must be provided to enable plant and equipment to be moved safely.

Safe access and egress

The employer must provide safe means of access to and egress from all the places where employees and others have need to resort to in the course of their work. The Workplace (Health, Safety and Welfare) Regulations 1992 (WHSWR), which apply to all new or modified workplaces, and will apply to all workplaces from 1996, place general duties on the employer or occupier in that respect. These regulations are more specific than earlier legislation regarding the condition of access routes and the organisation of traffic routes.

Environment

Employers must make sure that the environment of the workplace must be such that it does not put the health of the workpeople at risk. WHSWR lays down the requirements to be met within the workplace and covers such conditions as keeping the workplace clean, properly decorated, ventilated, well lit, suitably heated and that adequate welfare facilities such as first aid, toilets, washrooms, changing and rest rooms are provided.

Noxious fumes must not be emitted into the atmosphere and the disposal of waste, particularly waste containing dangerous chemicals, is strictly controlled by regulations.

Safety policy

employers should develop and publish a statement setting out their intentions with regard to protecting the health and safety of their employees. This is now enshrined in s. 2(3) of the HSW and all employers, except those employing less than five persons, are required to have a written statement of their safety policy. However, in preparing this statement of safety policy sight should not be lost of the prime aim of the Business which is to make a profit through the manufacture and sale of the products it makes or the service it provides to its clients. The safety policy should state that the intention is to do so without putting employees, or others, at risk of their health of physical well being.

Copies of the policy should be ‘brought to the notice of employees’ either by displaying it on notice boards if this is the normally accepted means of general communication, or by giving a copy to each employee. For new starts, their induction training should include discussion of the company’s safety policy when copies can be issued to them.

Supporting the policy should be information on the organisation that exists to implement the policy and the facilities or arrangements that are in being or achieving the policy’s intent. These two points are dealt with below.

The fact of drawing up a safety policy document is not sufficient to ensure that the company will be a safe place to work or that the employees will not suffer injury. The successful implementation of the policy depends to a large extent for its success on the degree of the employer’s commitment and involvement of the employer the policy is not likely to be effective.

Risk assessments

Employers must be aware that much of the success in achieving high standards of health and safety lies in removing or reducing the risks faced by employees before an accident happens. The value of this has been recognised and requirements are contained in legislation for employers to carry out risk assessments for all operations.

In many cases, risk assessments are carried out subjectively, almost subconsciously, in the normal course of work, and indeed living.

MHSWR requires every employee to carry out risk assessments and, for those employing more than five people, to record the findings of the assessment…. Etc

It is not possible for an employee to bring a civil action against its employer under this legislation s. 47 of the Act . However, both the Health and Safety at Work Regulations 1999 and the Council Directive 89/391/EC , have increased protection for the health and safety of the worker and increased the burden on the employer under Article 6 (2) of the Directive .

DEFENCES

VOLENTI NON FIT INJURIA

An employee’s knowledge of the existence of a danger does not in itself amount to consent to run the risk. See: Smith v Baker [1891] AC 325 and Baker v James Bros [1921] 2 KB 674

Employers must be aware that as a matter of public policy volenti is not a defence to an action for breach of statutory duty brought by a worker against his employer.

This defence will apply only where the claimant is the sole author of his own misfortune.

CONTRIBUTORY NEGLIGENCE

Employer’s are advised that Contributory negligence is a defence both to an action in negligence and breach of statutory duty. In general, however, the carelessness of employees as claimants is treated more leniently than the negligence of employers, even where liability rests upon the vicarious responsibility of the employer for the negligence of another employee