Obligations Towards Employees Under Health And Safety

This report offers advice to SME (Client Company) in regards to its obligations towards employees under Health and Safety Laws. This involves identification of the main areas which employers owe a duty towards its employees. The report will also explore liabilities which will arise due to employers failure to comply with the health and safety of their employees while they are carrying out their work duties and advise on liabilities proportionality to risks paused by the work activities are considered and conclusions are drawn.

Introduction

There are a vast number of different statutes governing safety issues, but health and safety is not only governed by legislation. Under what is known as ‘common law’ all employers have a duty of care imposed on them to protect their employees. There is also a term implied into all employment contracts requiring employers to take care of their employees’ health and safety.

Common Law Duty

The common law duty of care translates into an implied term of the contract. The House of Lords identified the following key areas in which this implied duty lies (See Wilsons and Clyde Coal Co v English [1] ). For example, employers must:

recruit competent and safety conscious staff.

provide adequate safe plant and equipment

provide a safe system of work

provide a safe place of work

(a) Recruitment of Competent & safety conscious staff

An employer will be liable due to failure to provide employees with sufficient training. See Hawkins v Ross Castings (Ltd) [2] here an employee sustained an injury as a result of a spillage of molten metal at the fault of a colleague. Another factor to competent staff is the actual behaviour of the employees whose, acts of mischief or ‘larking around’ can be of a particular danger as occurred in Hudson v Ridge Manufacturing Co Ltd, [3] in this case it was determined that the employer‘s lack of care in failing to maintain discipline and prevent potential dangerous conduct may result in vicarious liability towards the employer instead of the employees action, if it’s in the course of his employment (Harrison v Michelin Tyres ) [4] contrasted by Aldred v Nacanco [5] .

(b) Provision of adequate Safe Plant and Equipment

An employer must provide adequate safe plant and equipment. This even applies where there was no knowledge of there being a fault. It’s a diversion from the common law perspective yet, with the passing of the Employer’s Liability (Defective Equipment) Act of 1969 [6] , still not a new measure. In the legislation all faults in the equipment to be attributable to the employer .An example is where a third party has been negligent and to meet the financial needs of this obligation, insurance is obligatory for such actions in accordance with the Employer’s Liability (Compulsory Insurance) Act 1969 [7] . In an interest of being impartial, the employer and /or the insurance company can then sue the manufacturer. In certain situations the duty may be discharged if the equipment is bought from a reputable company and kept in good repair (See Davie v New Merton Board Mills [8] However, in Taylor v Rover [9] the employer was held liable on the fact that the employer knew that someone else had been injured in the same way, but failed to withdraw the equipment or to check it.

Similarly, in R. v. F. Howe [10]  , The employer pleaded guilty to four offences under the HAS 1974. [11] It was alleged the company had failed to carry out regular checks of the trip device and other safety measures. This was upheld in another case with similar facts, R. v Friskies Petcare [12] ,reflects the increased concern over occupational health.

Contrasted by Dugmore v Swansea NHS Trust [13] ,  the employee appealed against the dismissal of her claim for damages arising from the consequences of a latex allergy .It was held in allowing her appeal that there was an absolute duty in Reg. 7(1) [14] of both the 1988 and 1994 Control of Substance Regulations to ensure that exposure to hazardous substances was prevented or adequately controlled, and the issue of foreseeability of risk was not relevant. The Trust erred in that it failed to adequately control the employee's exposure to latex given that she was often obliged to wear latex gloves when other types of gloves could have been supplied. The Trust had either failed to have knowledge of the risk of allergic reaction to latex gloves or had underestimated the risk and taken no precautions against it.

(c) Provision of a Safe System of Work

The employer must to inform employees of the location of safety equipment and find a balance between the obvious and not so obvious safety measures .Where there would be an obligation to inform the employee of risks and the proper procedures. Employees may make a decision not to take certain precautions, but if the risk is obvious, the employer will not be liable; however despite any conscious choice on the part of the employee, a risk that is not obvious will always rest with the employer. This standard is ideal as it rightly presupposes the authority of the employer and their superior knowledge but at the same time, also acknowledges personal autonomy of employees for which the employer should not be held liable.

InJeffrey v CMB Speciality Packaging [15] , the worker was exposed to high levels of noise... He instituted proceedings for industrial deafness. It was determined that his hearing problem was attributable to his working environment. It was held that his employers took no physical steps to protect their employees' hearing, or provide any form of warning.

An employer must refrain from making the employee work excessively long hours and cause unnecessary levels of stress and the even more serious occurrence of bullying in the work place. This gave rise to psychological injury that employees could sustain due to a lot of pressure in the work place; this would have been a far more applicable head of claim to a number of employees than that of the traditional doctrine of liability for physical injury alone. But, two recent cases on this matter gave rise to, limitations and outright exclusion of heads of claim in relation to stress in the work place. This occurred in Sutherland v Hatton [16] in which it was held by the Court of Appeal that there had to be ‘plain indications of impending harm’ that would arise from the stress. This is part of a traditional acceptance that there has to be a balance between the likelihood of the injury occurring and the cost to the employer of protecting his employees. In Barber v Somerset County Council [17] , the case involved a teacher suffering from stress . The House of Lords rejected the notion of an employer’s duty of care and stated that:

“The school is entitled to expect, also, that the teacher, an adult, will take his own decisions as to whether he needs to consult his doctor and will, if so advised by his doctor, take time off… ” per Lord Scott.

d)Provision of a Safe place of work

Since the decision of the Wilsons and Clyde Coal Co [18] case, there is a fourth area to which the applied duty of care is attributable and this is the provision of a safe place of work. There are three key areas where the employer must exercise a reasonable standard of care. This constituted the obligation to provide an adequate reporting system. More recently, this has the potential to extend to instances of long term injury such as passive smoking as it was established that employees have a right to work in a smoke free environment ( See Waltons and Morse v Dorrington ) [19] .

Bilton v Fastnet Highlands Ltd, [20] demonstrated the strong protection given to a worker endangered at work in this case the Employee developed occupational asthma as a result of her exposure to 'respirable prawn protein' and other substances. The employer was in breach of Regulation 7 of the COSHH 1988 [21] (which has been repealed). It was held that the onus was on the employer to show that it had complied with the regulations in fulfillment of its statutory duty . The fact that the employee might not have taken steps to avert the danger to her did not matter. This burden is very strict and was decided in favour of the worker.

Statutory obligations

Health and Safety at Work Act 1974 [22] is the key legislative authority for the obligations of employers to their employees and its legitimate aim is twofold. The Act sets out the general duties that are applicable to the entire employment circle. Section . 2(1) of the 1974 Act [23] , states:

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees.”

In addition , to this there are more specific obligations laid throughout s.2 of the Act [24] , which include ‘the provision and maintenance of plant and systems of work to ensure their safety for use by workers. The provision extends to , ‘the handling, storage , transport of articles and substances’ ,‘provision of information, instructions, training and supervision.

and

“The provision and maintenance of a safe, risk-free working environment with adequate welfare facilities and arrangements.”

The crucial element of the provisions is that of the standard of care stipulated above . This carries with it the obligation for an employer to do everything reasonable that would ensure safety and the provisions go far to show that this encompasses many fields such as training, inspections, risk assessments and the availability of safety equipment. This requires employers to actively think about the measures they are employing.

The Act’s system of enforcement is largely carried out by the Health and Safety inspectorate but paradoxically, no one can, in accordance with s 47 of the Act [25] , raise a civil action under the duties imposed by the 1974 Act [26] . While this results in a fundamental questioning of the usefulness of the 1974 Act [27] , it does highlight the fact that this legislation is exclusively an Act for professional enforceability. The rights of recourse for employees are therefore in accordance with the standard duties of care that are found under the law of tort.

There is increased the protection of the employee in the workplace through Health and Safety at Work Regulations 1999 [28]   and the Council Directive 89/391/EC [29]  ,raises more protection for the health and safety of the worker and increased the burden on the employer by introducing 'principles of prevention' which call on the employer in Article 6 (2) [30] .

An employer is also required to appoint competent staff to oversee the health and safety system. Employers lose the right to rely on the default of the worker as a defence for contravening the health and safety regulations. The increased burden on the employer grants the worker more protection. In Hardman v Mallon [31] , it was held that the employer's failure to carry out a risk assessment as required by the Management Regulations 1999 Reg. 16 [32] on learning that M was pregnant, amounted to an unlawful act. It was held further that whilst it was the duty of every employer to carry out risk assessments on all employees, the failure to carry out a risk assessment impacted disparately on a pregnant woman, a particularly protected worker, and amounted to discrimination.

Proportionality of liabilities to the risks posed

The way in which the courts have dealt with the above is based on the crucial phrase, ‘so far as is reasonably practicable. The balancing principle is ubiquitous in’ Case law and clearly shows that the reasonable practicability of a given situation can cover areas such as financial viability of the health and safety measure as against the risk of injury. This is similar to the balance that requires to be sought under the common law, with the equivalent 1974 Act [33] as illustrated in the case of Associated Diaries v Hartley [34] . Here an employee sustained an injury as a result of a truck going over his foot. The safety shoes would have cost him more / less per week but chose not to use them and his argument that they should have been provided for free failed on the fact that they would have even coasted the employer much more than what he would paid for them. It’s arguable under the circumstances that the proportionate of liability to risk posed is not just here.

Contrasted by, (Barber v Somerset County Council) [35] , Sutherland v Hatton and Others, [36] and Shell Tankers UK Ltd v Jeromson, [37]  the employer denied liability for the death of two employees who had contracted 'mesothelioma' following prolonged exposure to asbestos

The proportionality in certain circumstances is analogous to the risk posed. However, the 1974 Act is not well equipped to deal with certain instances of stress at work on account those civil actions cannot be raised via its provisions. Therefore, the aspect of stress related cases is not proportionate to the risks posed at work places. On the other hand the common law does however acknowledge that a duty of care also extends beyond the work place where the employee continues to act within their duties of employment.

In the case of King v Smith and Another, [38] where, in the event of inadequate on-site facilities, it is up to the employer to find a suitable solution to employ.

The Health and Safety legislation is in need of reform in order to cope with current issues that were not such a going concern. This is due to the ever increasing issues of stress related cases that would be wholly out-with the competence of the Health and Safety regime. However, as a result of Barber v Somerset County Council [39] , such an argument would not hold strength unless the legislative were to decide to override the common law doctrine and create a statutory obligation for employers against employees stress at work.

Employers are encouraged to manage work-life balance for their employees in order to reduce stress related issues at work and other related factors as this benefits the organization (The Working time Directive (93/104 EC) [40] 

Conclusion

The HSA went a long way in securing protection for workers .Both the statutory framework and the common law are equally satisfactory in their ability to address negligence related cases where there has been physical injury caused to the employee on account of the negligence of the employer. However, as can be seen for the preceding discussions, it has arguably not catered for new hazards brought on by a change in work practices such as; the exclusion of liability for stress is a concern of great magnitude (See Barber v Somerset County Council) [41] .

The health and safety of workers is a vital tool in a thriving economy. The loss of productivity is unaffordable, and employers need to be educated that it costs them to lose good workers to avoidable risks.

 



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