Employers have certain duties towards each and every employee. These duties are two-fold. Firstly, employers owe a statutory duty under the Health and Safety Acts to protect the wellbeing of their employees. An employer also owes a common law duty to their employees and is liable where there is negligence. There is an overlap between the Statutory and Common Law duties owed by employers.
An employer is required by law to take reasonable care for employees’ safety. However, the employer’s duty is not an unlimited one and employers can not be expected to act as insurers. Whether an employer is ultimately found to be negligent is measured on the test of reasonableness. The law does not require an employer to ensure the safety of employees in all circumstances; rather s/he will have discharged his duty of care if s/he does what a ‘reasonable and prudent’ employer would have done in the circumstances. Even where a certain safety measure may appear to be obvious in the interest of safety of the employee, there may be factors which would warrant the employer in not taking such steps. It is important to not that it is not enough for an employee to simply suggest his employer was negligent, s/he must actually prove s/he was negligent in order to receive compensation.
There are two main elements to proving negligence. Firstly, that the act complained of was reasonably foreseeable and secondly, that reasonable care was not taken to prevent the accident.
The Courts have been very reluctant to set down any specific definition of ‘duty of care’ as it is viewed as one which varies with the nature of the employment and the relationship involved between the employer and employee. In other words an employer might have to take more care to protect a young inexperienced worker than he would have to take with an experienced employee. Reported cases have laid down some general guidelines, which are useful but which are not exhaustive:
- The employer is not obliged to warn the employee of obvious risks.
- The employer cannot foresee every risk that may possibly occur.
- An employer may be negligent by omission if he has forgotten to do something which a reasonable person would have done in the circumstances.
The courts have tended to look at an employer’s common law duty of care under the four basic headings, which include providing a safe place of work, proper tools and equipment, a safe system of working and competent staff.
Employers and Employees duties under Statute
As well as common law duties an employer owes duties, under statute, to safeguard employees in the workplace. Under the legislation the employer’s duty is to ensure the safety of employees, particularly by providing:
- Safety information, instruction, training and supervision to employees;
- A risk assessment and implementation of measures to protect workers from those risks;
- Protective clothing or equipment;
- Emergency plans and Safety Statements;
The act also places obligations on employees to contribute to the safe environment. In particular, employees not engage in improper conduct or behaviour, wear personal protective clothing as required, cooperate with their employer and not do anything would place themselves or others at risk.
In addition to the Irish legislation duties and obligations are also placed on the employer under European Law.
In some cases injuries may not be obvious immediately or they may get worse over time. However, an employer cannot face the possibility of an employee issuing legal proceedings over an injury over an indefinite period of time and so an injured person has a certain time frame within which s/he can take a case. Sincethe 5th May, 2005, injured persons no longer have 3 years from the date of their injury within which they can bring a claim for compensation. The period has been reduced to 2 years.
It is important to note that if a person is dismissed for refusing to carry out work that is unsafe, it would amount to unfair dismissal and s/he would be protected under the provision of the Unfair Dismissals Act 1977.