Article – 18th September 2012
What is an employer’s obligation towards employees when it comes to health and safety?
Employers have a duty of care towards their employees’ wellbeing under the Health and Safety Acts; this is what’s called a statutory duty but they also have a Common Law Duty or what most people refer to as Employers Liability.
The duties in the Act and the Common Law overlap. The Common Law Duties are:
- To provide a safe place of work. Employer must ensure that the place of work is reasonably safe and maintained as such. It’s not an excuse to say an employee was aware of the danger on the premises. Note that the court will look at the facts and surrounding circumstances in each case.
- To provide proper tools and equipment. Not only must safe and proper equipment be provided it must also be maintained.
- To provide a safe system of working
- To provide competent staff
In what cases can the employer be considered negligent?
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 cannot be put out to be 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, in all circumstances, the safety of employees; 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 precaution is obvious, in the interest of safety of the employee, there may be countervailing factors which would justify the employer not taking that precaution. It is also 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:
- That the act complained of was reasonably foreseeable; and
- That reasonable care was not taken to prevent the accident.
Is the term ‘reasonable care’ defined so that employers and employees know what is meant by it?
The courts have been very slow to set down any specific definition of ‘duty of care’ and they have seen it 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 the duty of care under the four basic headings which we set out earlier:
- The provision of competent co-workers.
- The provision of a safe place of work.
- The provision of proper equipment.
- The provision of a safe system of work.
So we know the Duty of Care of Employer under Common Law, what are the duties under Statute?
In addition an employer owes duties under statute to safeguard employees in the workplace.
Under the Safety, Health and Welfare at Work Act 2005, (”SHWWA”) (Section 8) the employer’s duty is to ensure the safety of employees and in particular;
- Safety information, instruction, training and supervision to employees
- A risk assessment and to implement measures to protect workers from those risks
- Protective clothing or equipment
- Emergency plans
- Protection against hazards such as substances
When the law says the employer must do what is “reasonably practicable” to prevent the risk in the work place, what does that mean, do all risks have to be eliminated?
The Act defines “reasonably practicable” as meaning “that an employer has exercised all due care by putting in place the necessary and protective measures, having identified the hazards and assessed the risk to safety and health likely to result in accidents or injury to health at the place of work concerned and where putting place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work”.
Therefore, the standard of care is very high on the employer.
Does an employee have obligations under the Health and Safety legislation?
The act also places obligations on employees to contribute to the safe environment and in particular employees must:-
a) comply with relevant safety and health laws
b) not be under the influence of an intoxicant while in the workplace
c) not engage in improper conduct or behavior
d) wear personal protective clothing as required
e) cooperate with their employer
f) not do anything would place themselves or others at risk
In addition to the SHWWA there are duties and obligations on the employer under the European Law that has been adopted.
What happens when there is an accident in the workplace?
If an employee suffers an injury in the workplace they can sue his or her employer in the following way:-
- for breach of statutory duty (e.g. SHWWA) and they must show that the employer failed to comply with a requirement under the act and that as a result that the employer suffered injury and loss
- for breach of common law duty of care and the employee must show that the employer was negligent that he did not take reasonable care of the employees safety
Are there any time limits in terms of bringing a claim – as in some cases injuries may not manifest themselves immediately or may get worse over time?
Since the 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.
If an employee undertakes a task knowing it is dangerous, but he does not want to lose his job, what protection does the law offer?
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.