10th March, 2020
Employers owe their employees a duty of care. Employees owe their employers a duty of care. And employees owe each other a duty of care. We all must take care to avoid hurting someone else. But what does this mean? And is the duty of care relevant in the workplace?
Employers owe their employees a duty of care. Employees owe their employers a duty of care. And employees owe each other a duty of care. But what does this mean? And is the duty of care relevant in the workplace?
Employers have health and safety responsibilities under common law. We all do. We owe each other 'reasonable care' and, if we fail to fulfil that requirement, we may be guilty of negligence.
The duty of care is a legal expression. It is a persons responsibility not to harm others through carelessness. In simple terms, it means that we all must take care to avoid doing something that could hurt someone else. The courts established a duty of care to give people a way of bringing claims against people who have harmed them.
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Under the duty of care, your neighbour isn't the person who lives next door to you (although you may owe them a duty of care when your chopping down a tree in your garden!). Your neighbour is anyone who may be closely and directly affected by your act (or failure to act).
You may be more familiar with the term negligence. Negligence is the term used when the duty of care is breached. If someone is negligent, then it means that they have failed in the duty of care they owed to someone, and that has caused damage to that person.
Everyone owes a duty of care to people they could (or should) reasonably expect to cause harm to by their acts or omissions (failure to act). This isn't just something that applies at work. The duty of care applies to everyday life. If you go around being careless, inside or outside of work, it could have consequences.
the legal obligation to safeguard others from harm while they are in your care, using your services, or exposed to your activities.
For example, a business owner owes his employees a duty of care, but also visitors, users of its services and people nearby. A hospital owes its patients a duty of care. A landlord owes its tenants a duty of care. Etc.
Because the duty of care is established under common law, there is no specific regulation or legislation for it. There is no Duty of Care Act or Duty of Care Regulations. It has been developed through case law and claims for negligence over the past 100 years.
Employers have legal duties to their employees. And employees have legal duties too. Surrounding the duty of care, most of the health and safety legal duties have been put into criminal law. E.g. acts and regulations, like the Health and Safety at Work Etc. Act, the Management of Health and Safety at Work Regulations, and many others.
So both a duty of care (civil law) and health and safety laws (criminal law) apply. A breach under the duty of care can mean a claim for compensation by the injured person. And it can also mean enforcement or prosecution from the HSE (or enforcing authority) for a beach of health and safety laws.
Under civil law, if someone has been injured or made ill through your negligence as an employer, they may be able to make a compensation claim against you. You can also be found liable if someone who works for you has been negligent and caused harm to someone else.
But why do we need health and safety laws if we already have the duty of care? The development of these health and safety acts and regulations brings many benefits in the protection of people from harm.
The duty of care has been developed through case law, which means, with each court case the way a duty of care applies becomes more defined. The first key case was the neighbour principle in the Donaghue v Stevenson case mentioned above, and this dates back to 1932. It wasn't until nearly 60 years later in 1990 that Caparo Industries vs Dickman added further requirements to establishing a duty of care...
- the loss must be reasonably foreseeable
- there must be a relationship of proximity between the parties
- it must be fair, just and reasonable that the law should impose a duty
In comparison, while health and safety laws also change over time, they are written down and passed by parliament. You can download a copy of the regulations and get a good understanding of what is required. It is much more specific to each topic or area. Working at height? The Work at Height Regulations tells you the legal requirements. Working with computers? The Display Screen Regulations apply. Carrying boxes? The Manual Handling Regulations lay out the law.
Claims for negligence can only be made by an individual once a breach of the duty of care has happened. E.g. once an accident has already occurred. This means that you would have to wait for an accident to happen before you could make a claim, and of course, if that accident was serious or fatal, then it's all a bit too late at that point!
With health and safety regulations, failing to take actions required by law can result in enforcement action, like needing to put things in place, or stopping work until safety measures are implemented. This is a more proactive way of enforcing health and safety standards.
The duty of care is enforced by the courts, again, after the fact. And claims are made by the injured party. In contrast, because health and safety laws are enforced all of the time, whether or not there has been an accident, it gives rise to an enforcement authority e.g. the HSE.
The Health and Safety at Work etc Act 1974 (HSW Act) is criminal law aimed at protecting employees and others who may be affected by work activities. It is enforced mainly by HSE and local authorities.
Health and safety laws can be enforced by the HSE, and HSE inspectors have powers like being able to enter premises, investigate, stop work, and even prosecute.
The consequences from a breach of a duty of care are damages. Usually, the claimant will put in a claim to be reimbursed or compensated for the loss that has occurred. For smaller business, this can have a big impact. But for larger business with larger profits, it's not necessarily a big concern.
Having work stopped? The possibility of massive fines over and above the loss? Jail time? Whatever size your business these punishments are going to have a big impact. And health and safety laws
You won't often find prosecutions making headlines under common law regarding health and safety at work. Not because the duties don't apply, or aren't important. But because the common law duties are now formally acknowledged and enforced through acts and regulations. These can be enforced in criminal courts, with bigger consequences.
But the duty of care still applies at work. And if you are careless, whether you are an employer or an employee, you could breach a duty of care. And negligence at work can lead to compensation claims on top of any criminal prosecutions.
Find out more about the legal health and safety responsibilities of employers.
This article was written by Emma at HASpod. Emma has over 10 years experience in health and safety and BSc (Hons) Construction Management. She is NEBOSH qualified and Tech IOSH.
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