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4.1.2 Personal Liability Lecture

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.

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

It should be noted that the different factors relating to safe working, discussed below, must all coincide for a workplace to be considered safe, 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. 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.

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. In Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110 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.) In General Cleaning Contractors v Christmas [1954] AC 180 it was ruled that 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.

In Cook v Square D Ltd [1992] ICR 262 the bench listed the following (non-exhaustive) 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 in terms of the number of employees and the length of their employment at which employers would be expected to take a more proactive approach to off-site safety.

Safe Equipment (and Materials)

An employer must provide equipment and materials which are safe and properly maintained. For example, 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, Knowles v Liverpool County Council.

Despite the wide nature of the duty, 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.

Safe System of Work

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: the physical layout of the job, the sequence in which work is carried out, the provision of warnings and notices of particular dangers, including special instructions where necessary, and finally the need to improve the system as necessary, or modify it to deal with particular circumstances.

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. Also, 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. 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, where the court held that the claimant’s employers were liable as 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 where 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 employer 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 when he returned. There exist issues of foreseeability with regards to psychiatric harm in the workplace – it is difficult to foresee which employees might be adversely affected by such stress.

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. 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, but also a claim can arise as a result of vicarious liability.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.

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. 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 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. 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 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. In Paris v Stepney Borough Council [1951] AC 367 (also discussed in the chapter on standard of care) the employer had an obligation to provide certain 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, which is clearly no solution at all –Withers v Perry Chain Co Ltd [1961] 1 WLR 1314.

Modification of the Duty (is Largely Impossible)

Terms of a contract of employment which seek to exclude employer duties will generally not be binding. See Johnstone v Bloomsbury Health Authority [1992] QB 333. Of course, whether a particular contract term violates this rule will depend on the context.

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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