Employers Duty Of Care

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Common Law

In an article of this length it would be impossible to deal with the entire field of common law. Therefore, the focus is very narrow and purely related to an employer's common law duty of care towards their employees. Additionally, only the civil law implications of common law are considered.

To be successful in a tort of negligence action the following has to be established:

· That the defendant owed the claimant a duty of care.

· That the duty of care was breached through negligence.

· That loss resulted from the breach of the duty of care.

Negligence merely means failing to act in a way a reasonable person would have acted under the circumstances, or acting in a way a reasonable person would not have acted in under the circumstances.

The burden of proof in civil cases rests with the claimant on the balance of probabilities. However, there are two main ways in which the claimant can gain assistance in discharging this burden of proof. Namely:

· Assistance by statute. Under the Civil Evidence Act 1968, where the defendant has been convicted of criminal proceedings that conviction is admissible in civil proceedings.

· Assistance at common law. Under the doctrine of res ipsa loquitur, or the thing speaks for itself, the evidential burden of proof is cast from the claimant upon the defendant. However, three conditions must apply:

· The accident could not have occurred without negligence.

· The defendant was in control of the situation.

· There is an absence of an alternative explanation by the defendant.

The Duty of Care

In Wilsons and Clyde Coal Co Ltd v English (1938), the four main elements of an employers’ duty towards their employees were identified as being the:

· Provision and maintenance of a safe place of work;

· Provision and maintenance of a safe system of work;

· Provision and maintenance of safe plant and appliances;

· Provision of competent fellow employees.

In addition, it was made clear, that while an employer may delegate some of these functions to nominated employees, the employer cannot delegate legal responsibility.

The duty of care owed by employers to their employees has been extended over the years through case-law. Examples being:

Safe Place of Work

· Galt v British Railways Board (1983). The claimant suffered shock and consequent heart problems when the train he was driving nearly hit two men working by the lines. The defendant was held to be liable for not providing a lookout.

· Paine v Colne Valley Electricity Supply Company Ltd (1938) found the employer liable after an employee was electrocuted because a kiosk had not been properly insulated.

· Latimer v AEC Ltd (1953) found the employer not liable after a heavy storm flooded the factory floor and a mixture of oil and water made the floor slippery. The employer put down sand and sawdust, but did not have enough to treat the whole of the factory in this way. As a result the claimant was injured. It was held that the risk was not grave enough to warrant closing down the factory.

Safe System of Work

· Ross v Tennant Caledonian Breweries Ltd (1983) demonstrated that the fact that a system has been in place for a period of time without accidents occurring, is not enough to demonstrate that it is a safe system.

· Bux v Slough Metal Ltd (1974) held that the employer had failed to provide a reasonably safe system of work by failing to give the employee the necessary instructions to wear the goggles provided and to enforce the wearing of them through supervision. However, in Qualcast (Wolverhampton) Ltd v Haynes (1959) an employee who did not wear the protective clothing which was available failed to gain compensation as they had chosen not to make use of it at their own risk. In Finch v Telegraph Construction and Maintenance Company (1949) the employer was found liable for the eye injury to the claimant, because although they had provided goggles they had not told the employee where to find them.

· In Walker v Northumberland County Council (1994) the duty to provide a safe system of work was extended beyond providing a system that took reasonable measure to protect employees from physical injury to protect employees from psychological injury as well.

Safe Plant and Appliances

· Bradford v Robinson Rentals (1967) held that it was foreseeable that a vehicle driver would suffer frostbite in an unheated van while driving a long distance in extremely cold weather. As the van also had cracked windows, it was held that the employer had failed to provide suitable plant.

· Davie v New Merton Board Mills Ltd (1959) led to the Employers' Liability (Defective Equipment) Act 1969. The claimant lost his claim against his employer following an injury from a tool with a hidden defect. It was held that the employer was not negligent. The Act changed matters by providing that if an employee is injured in the course of his employment as a consequence of a defect in equipment, provided by his employer for use in connection with his business, then that defect will be attributable to the negligence of the employer. However, any damages paid by the employer can then be recovered from the manufacturer or other responsible party. Knowles v Liverpool City Council(1993) found that a defective flagstone used by the "flagger" employed by the highway authority constituted equipment under the Act and the House of Lords refused to draw a distinction between equipment and materials.

· Taylor v Rover Car Company Ltd (1966) held that where an employer is aware of any defect in tools which have been purchased from outside the company, he should withdraw them from circulation.

· Williams v Birmingham Battery and Metal Company (1899) held the employer liable for failing to provide the necessary equipment, Machray v Stewarts and Lloyds Ltd (1964) for providing insufficient equipment and Bowater v Rowley Regis Corporation (1944) for providing defective equipment.

· Barkway v South Wales Transport Company (1950) held that an employer must have a proper and adequate system of inspection and testing in order that defects can be identified and reported. Whereas, Monaghan v Rhodes and Son (1920) held that such defects must then be remedied.

· Pearce v Round Oak Steel Works Ltd (1969) ruled that before second-hand machinery is put into use it must be checked to ensure that it is serviceable.

· Close v Steel Company of Wales (1962) found that failure to erect suitable and effective guards around unfenced machinery liable to eject parts or material, may constitute negligence at common law irrespective of any liability for a breach of relevant regulations.

Competent Fellow Employees

· Hudson v Ridge Manufacturing Company Ltd (1957) held that where an employer is aware that the conduct of an employee gives rise to danger due to sky-larking, the employer is under an obligation to take effective steps to remedy the situation. However, if the employer is unaware that practical jokes are being played, as in Smith v Crossley Brothers (1971), he will not be found liable as such acts fall outside of the scope of the employer's business.

· Butler v Fife Coal Company (1912) held that where an employer appoints an inexperienced person to carry out highly dangerous activities, then the employer may be liable if, as a result of lack of experience, another employee is injured.

If an employer knows, or if a reasonable employer could have foreseen, that an individual employee is at greater risk than an average employee, then the employer’s duty of care towards that individual employee is correspondingly greater. In Byers v Head Wrightson and Co Ltd (1961) it was held that greater precautions are necessary when dealing with young or inexperienced workers. Whereas, in Paris v Stepney Borough Council (1951) it was held that the Council had a greater duty of care towards the remaining eye of the one-eyed man.

With regard to whether the duty of care has been breached, a key test is whether the injury suffered was foreseeable? The next test being what would a reasonable person have been expected to have done to prevent this foreseeable injury? What is deemed to be reasonable depending upon the likelihood of the injury, the possible severity and the cost of doing more. Often the test of current good practice can be applied, providing that practice does not involve obvious folly.

The employer’s duty of care extends to cover the employee whilst they are “within the course of their employment” and “acting as a reasonable employee would act”. Tests for course of employment involve:

· The time of the accident.

· The place the accident occurred.

· What was the employee employed to do.

· Did the employer derive benefit from the employee's actions.

· Did an express prohibition apply.

Defences

Defences often consider whether the injury was foreseeable and whether the defendant did all that a reasonable person could have been expected to have done to prevent such a foreseeable injury.

Other defences involve sole fault of the employee, the fact that it was an inevitable accident, that the action was carried out under statutory authority, and the necessity to allow a lesser injury to prevent a greater injury.

Volenti non fit injuria, roughly translated as the injured person having volunteered to place themselves at risk, is a defence which the courts are reluctant to accept. When they do accept it, the following tests apply:

· Lack of coercion.

· A specific risk was involved.

· Full knowledge.

In Smith v Baker and Sons (1891) it was held that mere knowledge of the risk was not enough, it had to be shown that the claimant had consented to the particular thing being done which would involve the risk and had consented to take that risk upon himself.

The Law Reform (Contributory Negligence) Act 1945 provides that where injury is caused by two or more persons, the court must decide how much each person is to blame. One of the persons involved may be held to be the injured employee.

The basic limitations period under the Limitations Act 1980 is three years from either the date on which the cause of action accrued or the date of the claimant's knowledge whichever is the later. However, the courts have wide discretion and can disregard this time limit and permit actions to proceed.

Competency: What does this mean? How can this be assessed

Competences for Core Criteria for demonstration of Competence: Companies, Contractors, Co-ordinators and Designers

The tables below should help to understand and assess the standards you are required to meet the standards set out in the core criteria table below.

·        Column 1 of the table lists the elements which should be assessed when establishing whether or not a company is competent for the work which they will be expected to do.

·        Column 2 lists the standards against which the assessment should be made.

·        Column 3 gives some examples of how a company might demonstrate that it meets these standards.

Companies do not have to produce all of the evidence listed in column 3 to satisfy the standard – but they need to produce enough evidence to show that they meet the standard in column 2, taking account of the nature of the project and the risks which the work entails. This requires you to make a judgement as to whether the evidence provided meets the standard to be achieved.

If your judgement is reasonable, and clearly based on the evidence you have asked for and been provided with, you will not be criticised if the company you appoint subsequently proves not to be competent when carrying out the work.

The assessments should focus on the needs of the particular job and should be proportionate to the risks arising from the work. Unnecessary bureaucracy associated with competency assessment obscures the real issues and diverts effort away from them.

If you’re an employer with less than 5 persons working for you, you do not have to write down your policy, organisation or arrangements under criteria 1 and 2. However, you do need to demonstrate that your policy and arrangements are adequate in relation to the type of work you do. Assessments of competence will be made easier if your procedures are clear and accessible.

‘Contractor’, ‘Designer’ and ‘Co-ordinator’ relate to your function, not to the type of organisation.

	Criteria	Standard to be achieved	Examples of the evidence that you could use to demonstrate you meet the required standard
	Stage 1 assessment
1	Health and safety policy and organisation for health and safety	You are expected to have and implement an appropriate policy, regularly reviewed, and signed off by the managing director or equivalent. The policy must be relevant to the nature and scale of your work and set out the responsibilities for health and safety management at all levels within the organisation.	A signed, current copy of the company policy (indicating when it was last reviewed and by whose authority it is published). Guidance on writing company policies for health and safety can be found in HSE free leaflet INDG 259.
2	Arrangements	These should set out the arrangements for health and safety management within the organisation and should be relevant to the nature and scale of your work. They should set out how the company will discharge their duties under CDM (2007). There should be a clear indication of how these arrangements are communicated to the workforce.	A clear explanation of the arrangements which the company has made for putting its policy into effect and for discharging its duties under CDM (2007). Guidance on making arrangements for the management of health and safety can be found in HSE free leaflet INDG 259.
3	Competent advice – corporate and construction related	Your organisation, and your employees, must have ready access to competent health and safety advice, preferably from within your own organisation. The advisor must be able to provide general health and safety advice, and also (from the same source or elsewhere) advice relating to construction health and safety issues.	Name and competency details of the source of advice, e.g. a safety group, trade federation, or consultant who provides health and safety information and advice. An example from the last 12 months of advice given and action taken.

	Criteria	Standard to be achieved	Examples of the evidence that you could use to demonstrate you meet the required standard
4	Training and information	You should have in place, and implement, training arrangements to ensure your employees have the skills and understanding necessary to discharge their duties as contractors, designers or CDM co-ordinators. You should have in place a programme for refresher training, e.g. a Continuing Professional Development programme or lifelong learning which will keep your employees updated on new developments and changes to legislation or good health and safety practice. This applies throughout the organisation – from Board or equivalent, to trainees.	Headline training records. Evidence of a health and safety training culture including records, certificates of attendance and adequate health and safety induction training for site based workforce. Evidence of an active CPD programme. Sample ‘tool box talks’.
5	Individual qualifications and experience	Employees are expected to have the appropriate qualifications and experience for the assigned tasks, unless they are under controlled and competent supervision.	Details of qualifications and/or experience of specific corporate post holders, e.g. Board members, Health and Safety Adviser etc. Other key roles should be named or identified and details of relevant qualifications and experience provided. FOR CONTRACTORS: details of number/percentage of people engaged in the project that have passed a construction health and safety assessment, e.g. the Construction Skills’ health and safety test or affiliated schemes, or the CCNSG equivalent. For site managers, details of any specific training, such as Construction Skills’ Site Managers Safety Training Scheme certificate (SMSTS) or equivalent. For professionals, details of qualifications and/or professional institution membership. For site workers, details of any relevant qualifications or training such as S/NVQ certificates. Evidence of a company-based training programme suitable for the work to be carried out.

	Criteria	Standard to be achieved	Examples of the evidence that you could use to demonstrate you meet the required standard
7	Workforce involvement	You should have, and implement, an established means of consulting with your workforce on health and safety matters.	Evidence showing how consultation is carried out. Names of appointed safety representatives. For those employing more than five people, be able to describe how you consult with your employees to achieve the consultation required.
8	Accident reporting and enforcement action; follow up investigation	You should have records of all RIDDOR reportable events for at least the last three years. You should also have in place a system for reviewing all incidents, and recording the action taken as a result. You should record any enforcement action taken against your company over the last five years, and the action which you have taken to remedy matters subject to enforcement action.	Evidence showing the way in which you record and investigate accidents and incidents. Records of the last two accidents/incidents and the actions taken to prevent recurrence. Records of any enforcement action taken over the last five years, and what action was taken to put matters right. (Information on enforcement taken by HSE over the last five years is available on the HSE website.) For larger companies, simple statistics showing incidence rates of major injuries, over three-day injuries, reportable cases of ill-health and dangerous occurrences for the last three years. Records should include any incidents that occurred whilst the company traded under a different name, and any incidents that occur to direct employees or labour-only subcontractors.

	Criteria	Standard to be achieved	Examples of the evidence that you could use to demonstrate you meet the required standard
9	Subcontracting/ consulting procedures (if applicable)	You should have arrangements in place for appointing competent subcontractors/ consultants. You should be able to demonstrate how you ensure that subcontractors will also have arrangements for appointing competent subcontractors or consultants. You should have arrangements for monitoring subcontractor performance.	Evidence showing how you ensure subcontractors are competent. Examples of subcontractor assessments you have carried out. Evidence showing how you require similar standards of competence assessment from subcontractors. Evidence showing how you monitor subcontractor performance.
10	Hazard elimination and risk control (Designers only)	You should have, and implement, arrangements for meeting your duties under Regulation 11 of CDM (2007)	Evidence showing how you: •      ensure co-operation and co-ordination of design work within the design team and with other designers/contractors •      ensure that hazards are eliminated and any remaining risks controlled •      ensure that any structure which will be used as a workplace will meet relevant requirements of The Workplace (Health Safety and Welfare) Regulations 1992. Examples showing how risk was reduced through design. A short summary of how changes to designs will be managed. (Note: the emphasis here should be on practical measures which reduce particular risks arising from the design, not on lengthy procedural documentation highlighting generic risks.)

	Criteria	Standard to be achieved	Examples of the evidence that you could use to demonstrate you meet the required standard
11	Risk assessment leading to a safe method of work (Contractors only)	You should have procedures in place for carrying out risk assessments and for developing and implementing safe systems of work/method statements.	Evidence showing how the company will identify significant health and safety risks and how they will be controlled. Sample risk assessments or safe systems of work or method statements. If you employ less than five persons and do not have written arrangements, you should be able to describe how you achieve the above.
		The identification of health issues is expected to feature prominently in this system.	This will depend upon the nature of the work, but must reflect the importance of this risk area.
12	Co-operating with others and co-ordinating your work with that of other contractors (Contractors)	You should be able to illustrate how co-operation and co-ordination of your work is achieved in practice, and how you involve the workforce in drawing up method statements/safe systems of work.	Evidence could include sample risk assessments, procedural arrangements, and project team meeting notes. Evidence of how the company co-ordinates its work with other trades.
13	Welfare provision (Contractors)	You should be able to demonstrate how you will ensure that appropriate welfare facilities will be in place before people start work on site.	Evidence could include for example health and safety policy commitment; contracts with welfare facility providers; details of type of welfare facilities provided on previous projects.
14	CDM co-ordinator’s duties (CDM co-ordinators)	You should be able to demonstrate how you go about encouraging co-operation, co-ordination and communication between designers.	The evidence should be in the form of actual examples rather than by generic procedures.

	Criteria	Standard to be achieved	Examples of the evidence that you could use to demonstrate you meet the required standard
	Stage 2 assessment
1	Work experience	You should give details of relevant experience in the field of work for which you are applying.	A simple record of recent projects or contracts should be kept, with the phone numbers and addresses of contacts who can verify that work was carried out with due regard to health and safety. This should be sufficient to demonstrate your ability to deal with the key health and safety issues arising from the work you are applying for. Where there are significant shortfalls in your previous experience, or there are risks associated with the project which you have not managed before, an explanation of how these shortcomings will be overcome.

Guidance for assessing competence of a co-ordinator for a larger or more complex project, or one with high or unusual risks.

Organisations do not have to produce all of the evidence listed in column 3 to satisfy the standard – they simply need to produce enough evidence to show that they meet the standard in column 2, taking account of the nature of the project and the risks which the work entails. This requires you to make a judgement as to whether the evidence provided meets the standard to be achieved.


If your judgement is reasonable, and clearly based on the evidence provided, you will not be criticised if the company you appoint subsequently proves not to be competent to carry out the work.

Remember that assessments should focus on the needs of the particular job and should be proportionate to the risks arising from the work.

Unnecessary bureaucracy associated with competency assessment obscures the real issues and diverts effort away from them.

Element	Sub-element	Examples of attainment
Stage 1
Task knowledge appropriate for the tasks to be undertaken. May be technical or managerial.	The design process	Professionally Qualified to Chartered level (Note 1) Membership of a relevant construction institution, for example CIBSE; ICE; IET; IMechE; IstructE; RIBA; CIAT.
Health and safety knowledge sufficient to perform the task safely, by identifying hazard and evaluating the risk in order to protect self and others, and to appreciate general background.	Health and safety in construction	Validated CPD in this field (Note 2), and typical additional qualification e.g. NEBOSH Construction Certificate Member of the Health and Safety Register administered by the ICE (Note 3) Member of the Co-ordinators’ Register administered by the Association for Project Safety Fellowship of Association for Project Safety Membership of Institution of Planning Supervisors.
Stage 2
Experience and ability sufficient to perform the task, including, where appropriate, an appreciation of constructability, to recognise personal limitations, task-related faults and errors and to identify appropriate actions.		Evidence of work on similar projects with comparable hazards, complexity and procurement route.

Note 1      Chartered membership of a recognised construction-related institution.

Note 2      For current professionals this needs to include at least 3 days of appropriate training within the last 2 years, including a general ‘health and safety’ course with a construction bias and/or a specialist ‘co-ordinator’ course.

Note 3      Open to any member of a construction-related institution.