Personal Liability Lecture

It is unsurprising that a significant body of tort law has developed to deal with the duties employers have towards their employees - after all, many people will spend around close to 40 hours each week at work. Many employments also expose employees to significant sources of danger, with over 600,000 workplace injures occurring each year in the UK. It is estimated that around 10% of these workplace injuries result in a case being brought under tort law.

The law covering employers’ duties can be neatly split into two categories - those laws which have developed as a matter of common law, and those laws which are covered by statute. This chapter will deal with the former category, with statutory law dealt with in the next chapter. It should be noted that there is a partial overlap between these two categories - although when in doubt, statutory law will usually be the most authoritative and straightforward authority to use.

The sizeable amount of law regarding employers’ duties can in part be ascribed to the workers’ rights movement of the 20^th Century - after all, we’ve come a long way from forcing children under dangerous machinery to deal with breakdowns!

The Duty to Take Reasonable Care to Ensure the Safety of Employees

Any given employer holds a duty to take reasonable care to ensure the safety of their employees. It is important to note that this duty is personal and non-delegable - in essence, ultimate responsibility always rests with the employer - they cannot delegate the duty to someone else. Thus, if an employer hires a company to build a factory, which then collapses and injures employees, the employer will be held liable for the collapse, even though they did not personally build the factory. Whilst the employer can still personally sue the builders, the point is that the employer will be liable to the employees - he cannot point to the conduct of another to discharge his own duty. This helps to promote workplace safety - since an employer’s personal liability is tied up with his employees’ safety, he has a personal interest in providing a safe environment for them. An employer is therefore not able to simply place a barrier between themselves and law by employing someone else to take on their safety responsibilities.

The authority for this duty can be found in Wilsons & Clyde Co Ltd v English.

The bench identified the elements of a safe working environment which must be provided. Firstly, safe premises must be provided in a safe location. Secondly, employees must be provided with safe plant (or machinery), materials and equipment. Thirdly, a safe system of work must be provided and safe working practices observed. Fourthly, employers must provide competent staff as colleagues to any given employee. Each of these factors is considered in more detail below.

Note: ‘Safe premises’ was not actually explicitly listed by the judiciary in Wilsons v English - but it has since been included as a core element of a safe working environment.

It should be noted that these different factors of safe working must all coincide for a workplace to be considered safe - for example providing safety goggles is little use unless employees are told to wear them (a combination of the ‘safe equipment’ and ‘safe system’ elements of workplace safety), as in Bax v Slough Metals, discussed below.

Safe Place of Work

In order for a place of employment to be considered safe, it must include safe premises in a safe working environment. These two things must coincide - the world’s most structurally sound building could not be considered safe if it was located on the edge of a volcano. Similarly, going to work each day in an extremely safe location would not be much good if your office building was constructed from leaky petrol barrels and lit by naked flames.

The standard which must be met is that of the ‘reasonably prudent employer’. The application of this principle can be seen in Latimer v AEC Ltd (also discussed in the preceding chapter on standard of care).

This case also illustrates another point with regard to safe premises - that the capacity exists for them to become suddenly unsafe due with the introduction of a new factor (such as flooding). Consider the outcome if the defendant employer had no way of dealing with slippery floors; even the smallest spill would make the workplace unsafe - an unreasonable state of affairs.

The duty to provide a safe place of work extends to situations in which employees are tasked with going off-site to work in places which are not controlled by their employer. This means that those whose jobs involve visiting different places can enjoy a similar level of protection as those who work in the same location every day. See Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110 - the claimant was employed by the defendant as a window cleaner. When out on a job, the claimant fell and injured himself due to the unsafe state of the client’s premises. The claimant argued that this meant that his employers had exposed him to an unnecessary risk. Whilst the claim in this failed (because his employers had fulfilled their duty despite the accident) the court held that employers still owe a duty of care to employees even when they are working outside of their employer’s premises. 

This duty will be heightened if the employer is aware of a particular off-site hazard (most likely because it has been encountered by an employee before.) This was the case in General Cleaning Contractors v Christmas [1954] AC 180. A window cleaner (Christmas) was working on the outside of a building, balancing on a window sill and using the bottom half of a sash window for balance. The window slipped and closed, crushing the cleaner’s fingers, causing him to lose his balance and fall. This was a risk which had been encountered before - the simple solution would have been to wedge to window open somehow. The claimant’s employer argued that this was a precaution their employee should have known to take, but notably it was not one that they had provided for (or instructed their employees to take). It was thus ruled that the employers were liable - they were aware of an offsite risk but had failed to provide proper instruction or equipment to deal with it. So whilst employers do not necessarily have to inspect every set of premises their employees visit, they still have to take reasonable precautions to allow their employees to deal with hazards they might face.

This can be considered a balanced position - it would be overly taxing for an employer to ensure that a site they do not control is constantly safe, but they can control other aspects of their employees’ safety - namely their equipment and training (discussed in further detail below).

Cook v Square D Ltd [1992] ICR 262 provides a concise (but non-exhaustive) list of factors which an employer must consider when ascertaining the safety of any given workplace. A UK-based electrical engineer was sent on assignment to Saudi Arabia. Whilst working, he slipped on an access panel in the floor, which had been raised but not guarded. Whilst it was held that his employers had acted reasonably (since they could not be expected to be responsible for the Saudi site) the bench listed the following factors in determining workplace safety: the location of where the work is to be done, the nature of the building in which the work is completed, the nature of the work required, the expertise and experience of employees, the degree of control which might be expected from the employers, and whether the employer is aware of any particular dangers which might manifest themselves.

It was also noted in this case that there exists a tipping point at which employers would be expected to take a more proactive approach to off-site safety, depending on the number of employees working at the site and the length of their employment. So, if an employer’s entire payroll is working at a particular site for years, then it is highly likely that their employer will be expected to have inspected the site and ensured that whoever controls the site has sufficient safety measures in place. Building sites provide a prime example of this phenomenon, and also illustrate the fact that it is often those employments which involve a variety of different sites which are the most dangerous, and thus require a proper framework of legal protection for employees.

Safe Equipment (and Materials)

An employer must provide equipment and materials which are safe and properly maintained. This section of law overlaps considerably with the Employers’ Liability (Defective Equipment) Act 1969 (discussed in the next chapter).

A safe set of premises is little use if employees are using equipment which is prone to breaking and injuring employees. Similarly, if employees are working with a particular material it will be expected that the material supplied will be of a high-enough quality to avoid unnecessary risk. This was the case in Knowles v Liverpool County Council.

This reflects the non-delegable nature of employer’s liability - just as an employer cannot claim that they employed somebody else to deal with workplace safety as a defence, they cannot claim as a defence that somebody else manufactured the equipment their employees are using.

Despite the wide nature of the duty to provide safe equipment, there is a limit to an employer’s obligations. In particular if an employer can successfully argue that defective or lacking equipment did not cause their employee’s injuries, then they will be able to avoid liability. This was the case in McWilliams v Sir Arrol & Co Ltd [1962] 1 WLR 295. The claimant was employed by the defendant to build scaffolding around a steel crane, for use in its erection. Whilst carrying out this work he fell from 70 feet up and was killed. It was usual practice to provide safety harnesses to workers in the claimant’s position, but they had been removed from the site a few days earlier for use on another site. The defendant had thus been negligent in failing to provide such harnesses for the entirety of the job’s length. However, the employers successfully established that had they provided such harnesses, the claimant would not have worn them, despite any instruction otherwise. Thus, because the employer’s failure would have likely had no bearing on the outcome of the accident, the claim failed.

Safe System of Work

The failure to provide a safe system of work is the area in which the majority of claims arise. This is understandable - it is easy enough to spend money on the best premises, the most up-to-date equipment, and to employ only the most qualified staff. It is more difficult, however, to create a comprehensive system of working which ensures safety at all times. Furthermore, poorly designed systems of work can give rise to problems which only manifest themselves after a long period of time, whereas issues with equipment, premises or incompetent colleagues tend to involve sudden injury.

Because of its wide-remit, it is difficult to pin down exactly what characteristics a good or bad system of work has. It is for this reason that courts tend to take a case-by-case approach to evaluating whether liability exists. Speed v Thomas Swift & Co Ltd provides one such illustration of what a system of work can be said to entail.

This means that a wide range of circumstances are covered by the duty of provide a safe system of work. This includes situations in which employees are not warned of a given danger - as in Pape v Cumbria County Council [1992] 2 All ER 211. The claimants were cleaners employed by the defendants, and contracted dermatitis as a result of handling cleaning chemicals. Their employer had failed to inform them that a failure to wear gloves when handling the chemicals could cause such issues, and was thus held liable.

An employer cannot simply provide a safety measure and then forget a particular risk exists. This can be seen in Bax v Slough Metals [1973] 1 WLR 1358. The claimant was employed in a metal refinery, and worked with molten metals. Although safety goggles were provided the claimant refused to wear them, because they steamed up and therefore stopped him from carrying out his work properly. His employer knew of this, but failed to take any action to correct the situation either through providing more suitable goggles, or else ensuring that the employee wore the problematic goggles. The employer was thus held liable when the claimant was splashed with molten metal, injuring his eyes as a result.

If a particular risk has manifested itself, an employer will be mandated to take preventative action. This was the case in Rahman v Arearose Ltd [2001] QB 351. The claimant was working as a manager at a branch of Burger King. Two individuals came into the branch and started causing trouble. The manager confronted them and they attacked him in a protracted and brutal assault. The claimant suffered serious injuries as a result, and a number of psychiatric conditions following the attack. The two attackers were members of a gang who had been into the branch before and caused trouble. It also emerged that there had been previous attacks on staff working in the branch in similar circumstances. Despite these previous attacks, the claimant’s employers had taken no action to guard against the risk of such attacks occurring again. The court thus held that the claimant’s employers were liable - they had been put on notice of a risk but had failed to change working practices to deal with it.

The duty to provide a safe system of working extends to protecting the mental health of employees (limitations on claims psychiatric harm withstanding.) This is illustrated in Walker v Northumberland County Council [1995] 1 All ER 737. The claimant worked in a busy social services department, and despite requesting additional support from his employers, this was not provided. As a result the claimant had a mental breakdown, and took four months off of work. The additional support was still not provided, and the claimant took a second sick leave. He was dismissed, and sued his employer on the basis that they had breached their duty of care. This claim succeeded - it was held that there was no reason why an employer’s duty to provide a safe system of work did not extend to preventing psychiatric harm. The defendant should have been put on notice of the risk by the claimant’s first leave of absence, and should have taken steps to provide adequate assistance to the claimant.

However, employers can generally expect employees to withstand a certain level of stress, and this expectation is heightened when employees are working in managerial or more professional positions - after all, employees take on these positions due to heightened competence and ability. There also exist issues of foreseeability with regards to psychiatric harm in the workplace - employers know that they will expose their employees to a certain level of stress, but it is difficult to foresee which employees might be adversely affected by such stress (note how in Walker the employer knew for certain that the employee was susceptible to breakdowns, and that they had caused it.)

There is however a limit to the actions expected of an employer in respect of providing a safe working system. This was the ruling in Woods v Durable Suites Ltd.

Thus whilst an employer has a duty to put a safe system of work in place, they are still entitled to trust employees to follow it as sensible human beings.

Competent Staff

Finally, employers must provide competent colleagues for their employees - a safe working environment is little use if a fellow employee brandishes equipment dangerously, or fails to observe safety protocol. The need to provide competent staff can give rise to two different types of liability - there can be a breach of the duty to provide competent staff (discussed here), but also a claim can arise as a result of vicarious liability (discussed in a later chapter).

There are also situations in which only the employer’s duty is relevant, when an employee has acted poorly, but outside of the remit of their duties. This was the situation in Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348. The claimant was injured when a colleague decided to wrestle him to the ground in a prank. This resulted in the claimant breaking his wrist. The claimant’s employer had been aware of the prankster’s inappropriate behaviour for years at that point, but had done nothing to prevent his actions. The employer was thus held liable - their failure to deal with the prankster constituted a failure to provide a safe workplace for the claimant.

Thus, part of the duty to provide a safe workplace includes the provision of competent colleagues, and the maintenance of proper order. Just as a rickety handrail or a poorly maintained safety guard can constitute a risk, so can a poorly behaved employee.

Other Issues in Employers’ Liability

There also exist a handful of other rules and principles which apply to employers’ common law duties.

The Imposition of a Duty of Care Must Be Fair, Just and Reasonable

As with other forms of duty in tort, it must be fair, just and reasonable to impose a duty in the given situation. Whether a particular risk is acceptable will depend a lot on the profession being practiced. For example, a risk of burning would be wholly unreasonable in an office setting, but less so for firefighters. The court will therefore consider wider policy considerations when imposing a duty. This was the case in Mulcahy v Ministry of Defence [1996] 2 All ER 758. The claimant, a solider, was injured whilst deployed in Saudi Arabia. He was standing in front of a large artillery emplacement when it was negligently fired by the gun commander, injuring the claimant.

The general principle of combat immunity (i.e. conventional law does not apply in a wartime context) meant that the claim was invalid. It was further noted by the court that no duty of care was owed - it was not reasonable to demand the imposition of safe system of work on a battlefield.

The Duty Extends Beyond the Four Elements

It is important to remember that whilst the four elements of a safe workplace discussed above provide a solid framework for investigating workplace safety, they do not form the hard limits to an employer’s duty. Instead, the duty entails providing a safe workplace, even if that means dealing with factors which do not come under either premises, equipment, system or staff. Of course, an employer who does not take sufficient care in dealing with these four factors is opening themselves up to litigation. As with negligence in general, the imposition of a duty of care in any given common law situation will depend on the Caparo test.

The Duty Does Not Apply to Independent Contractors

The duty to provide a safe workplace does not extend to all of those employed by an employer. There must first be a relationship of employer-employee in place. Because of this, independent contractors cannot rely on an employer’s common law duty. The distinction which is made between employees and independent contractors is discussed in depth in the chapter on vicarious liability.

Of course, independent contractors are not stripped of all of their legal rights as a result of their employment status - they enjoy the same legal protection as any other individual would, such as the rights given under Occupier’s Liability or plain old negligence.

The Duty Exists Towards Each Individual Employee

The duty that an employer has towards their employees is not an abstract one. Instead, it is of a practical nature, and the characteristics of a given individual employee can and will alter the nature of an employer’s duty. This can be understood through an examination of Paris v Stepney Borough Council [1951] AC 367 (also discussed in the chapter on standard of care). The claimant was working in a garage. He was blind in one eye and his employers knew this. Employees in his position were not usually provided goggles. The claimant was left blind when a splinter of metal flew into his good eye. The courts held that the claimant’s employers had a greater obligation towards the claimant because he was at a far greater risk of being blinded in a workplace accident than the average employee. Thus, whilst the employer did not have a usual obligation to provide safety goggles (as an element of safe workplace equipment), they did have an obligation to provide such equipment to the claimant because of his individual characteristics.

There Exists a Limit to the Expected Standard of Care

Although employers are expected to ensure the safety of their employees where reasonable, there is a limit how far they must go. There are certain employments which will carry a certain risk regardless of the safety measures put in place for instance. In such situations the only way to avoid the risk would be to refuse to employ an employee in the first place - clearly a step too far, and one which does more to harm workers’ rights than to help them. This can be seen in Withers v Perry Chain Co Ltd [1961] 1 WLR 1314. The claimant, who had previously suffered from dermatitis, returned to work for the defendant after a leave of absence. It was known to both the employer and the employee that this meant that there was a small risk of the dermatitis reoccurring, or else being exacerbated. The dermatitis did reoccur, and the claimant sued. The courts rejected the claim - to allow it would have essentially meant that the employers had a duty to deny employment to a willing, competent adult employee.

Modification of the Duty (is Largely Impossible)

Many employees within the UK will sign a contract of employment before embarking on a given job. This can be seen as a potential opportunity for employers to attempt to modify their duties towards their employees through the inclusion of express terms. However, such terms will generally not be binding. See Johnstone v Bloomsbury Health Authority [1992] QB 333. The claimant, a junior doctor, was employed by the defendants to work forty hours per week. Included in the terms of his contract there was a clause which included that he must make himself available for a further forty-eight hours of work over a certain period of time. He argued that this was a breach of his employer’s duty to provide a safe system of working (essentially, that creating the conditions for overworking the claimant was a breach by the defendant). The claim succeeded. Although the bench was split on whether an express contract term could be used to overturn the employer’s obligations under tort law, the majority held that it could not. This is arguably a sensible stance, otherwise a wily employer could essentially overturn all of their safety obligations with a well-drafted contract - a clearly problematic situation. As such, an employer cannot modify their duty to provide a safe workplace.

Of course, whether a particular contract term violates this rule will depend on the context. A term stating that an employee is solely responsible for their own safety will likely be held to be an unreasonable modification, and therefore inapplicable. Conversely, a term stating that employees have the responsibility of wearing sensible footwear is probably far more reasonable, and will probably be held to apply.

Defences

Since the duty to provide a safe workplace is a common law one, employers are able to use common law defences when fighting a claim. The most relevant of these will be consent, since employees are in a workplace of their own free volition. Of course, whilst an employee might be held to consent to a low level of risk, a court is highly unlikely to rule that an employee has consent to being maimed by an unsafe machine, or splashed with molten metal.

Secondly, there will often be situations in which a claimant employee has contributed to their own injury, through misusing a piece of equipment or failing to heed a safety warning. In such circumstances, the defence of contributory negligence may well apply. Both of these defences will be covered in more detail in a later chapter.

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