While a business strives to do well and make profit, it must also ensure that its employees are healthy and safe at work. There are laws that expressly oblige employers to ensure that there are regulations on health and safety, and that employees are trained on this. In fact, there are terms ingrained in employment contracts which require employers to ensure their employees are healthy and safe. It isn’t just the employees that are protected under the law; temporary workers, casual workers, the self-employed, clients and visitors (i.e. customers and suppliers) also fall under the ‘protection’ umbrella, although in different ways. This article will specifically focus on the employers’ duties towards employees and workers.
That’s not to say that employees don’t have duties – they too have obligations under section 7 of the Health and Safety at Work Act 1974. Firstly, an employee must take reasonable care for their own health and safety as well as anyone else who might be affected by their acts/omissions at work. Secondly, they must cooperate with their employer as much as it is required, so that the employer can meet his/her own legal duties.
In this article we’ll be exploring the legal duties that employers have, to ensure there are robust health and safety regulations in the workplace. We’ll then look at any defences that an employer may have. Remember that employees also have duties under the law, but we won’t be discussing these further in this article.
The employer’s general duties
An employer has duties under statutory law and common law. Statutory law are written laws which have been passed by Parliament. Common law, on the other hand, is judge made law.
Before we explore the duties, it’s worth noting that employers just need to take reasonable precautions to protect their employees – as long as they’ve done so, they won’t be looked down on. The law does not oblige the employer to completely remove the risk; they simply have to balance the risk against the costs of mitigating that risk. If it’s found that the cost outweighs the risk, the employer is not expected to do anything to avoid it. The employer must only mitigate ‘so far as is reasonably practicable’.
Let’s first discuss the statutory duties that an employer has. The Health and Safety at Work Act 1974 requires an employer to provide adequate training and information to its employees and workers, so that they understand how to avoid possible risks and dangers that might occur at work. Employees must be familiar with potential hazards and the steps they need to take to avoid those risks. If the costs aren’t greater than the actual risk identified, the employer should proceed with doing what they can to mitigate that risk.
Laws such as the Management of Health and Safety at Work Regulations 1992 oblige employers to carry out risk assessments to sustain health and safety of their employees. This risk assessment should allow the employer to:
- identify potential hazards that might occur in the workplace;
- consider who the risk might be harmful to;
- work out the likelihood of someone being harmed in this way (and how serious the harm might be); and
- introduce measures to mitigate the risk as much as possible.
Other duties of an employer include providing appropriate protective clothing and equipment necessary for the employee to carry out the work. They must also have an up-to-date health & safety policy and must make sure requirements are met in relation to temperature, noise, ventilation and air.
Common law duties
Don’t forget an employer also has duties under the common law (i.e. law that’s made by judges). An employer should provide safe equipment that comply with health and safety requirements. This is to ensure the safety of the workplace, so that issues which are known – or should reasonably have been known – can be avoided. The employer should also have competent staff who have been adequately trained on the use of that equipment. Safety should be at the forefront of any business, and this includes implementing a safe system at work, ensuring that employees do not work excessively long hours and that they are not stressed or bullied at work.
What happens if an employer does not meet health and safety duties?
If an employer fails to comply with their health and safety requirements, they will commit a criminal offence (by ‘they’, we mean both the individual person and the company itself). Consequences of this offence includes fines, prison sentences and disqualification – not to mention the reputational damage and the possible shutting down of the company. There may also be other punishments.
Defences to the employer’s general duties
More often than not, the law provides exceptions to certain rules and regulations. That’s because it’s not always ‘one size fits all’ and so lawmakers need to ensure there’s maximum protection available to everybody. Therefore, there are exceptions to an employer’s general duties.
Defence to statutory duties
It is generally assumed that an employee can seek compensation if an employer fails to comply with their health and safety obligations. However, it may not always be fair to hold employers liable for incidents that occurred outside their control and that could not have been prevented by the employer. An employee can therefore only bring a claim if: a) the accident at work is a breach of health and safety regulations; and b) the employee can prove that the employer has been negligent.
This is new law that came about in 2013 through section 69 of the Enterprise and Regulatory Reform Act which repealed the Health & Safety at Work Act 1974; the old law gave employers little opportunity to defend themselves against a health & safety claim. Employers then were liable for breaches under this law, even where they had done all that was reasonable to protect their employees. This created a compensation culture, which meant that more employees began to make health & safety claims, to benefit from some compensation. The new law is now less of a burden on employers and removes the extent of strict liability. This way, the law considers and looks after both the employer and employee.
Defence to common law duties
There are two key defences: volenti and contributory negligence.
The defence of ‘volenti non fit injuria’ is a defence in civil law which a party enjoys without any liability, as long as they can show that the other party (e.g. employee) was fully aware of the risks and thus knowingly or willingly took that risk. The Latin phrase means ‘to one who volunteers, no harm is done’.
Let’s give that some context. Imagine X was asked by their employer to carry out some work. X knew the nature of the work involved and fully knew about the risks involved. Despite knowing this, X agrees to carry out the work and suffer any associated risks. Now imagine something terrible happens to X because of carrying out that work. In that case, X wouldn’t be able to make a claim against the employer. The employer would’ve carried out their duties by thoroughly explaining the risks associated with the work and X would’ve agreed to do the work with full awareness and knowledge of the risks.
It goes without saying that the defence is only available to the employer if the employee was under no pressure or coercive control to agree to carry out the work.
- Contributory negligence
Another defence available to the employer is where the employer can prove that the employee’s own negligence contributed to the loss or damage. This limits the compensation that the employee is entitled to.
Let’s imagine that the court deicides that the employee contributed to their own loss, at 20%. Accordingly, damages will be reduced by 20%. The percentage of the employee’s contribution would be the percentage that compensation is reduced by.
Employers must ensure they look after their employees so that everyone is healthy and safe while carrying out the work they’ve been hired to do. Conducting thorough risk assessments is an effective way of mitigating risks and seeing how best you can prevent problems from arising. These risk assessments must be tailored to the specific works carried out; high-risk work should follow a rigid risk assessment.
As an employer, it is your duty to take reasonable steps to protect your workers. That way, you can avoid any claims that may arise. But don’t forget that employees also have duties under the law which must be strictly followed.
This article is intended for guidance only and ‘must not’ be relied upon for specific advice.