Employees safety in Colchester and other parts of the country is ostensibly protected in two ways.
First, they are protected by the common law of negligence. This understanding of negligence is derived from the decision in the case of Donoghue v Stevenson [1932] AC 562 and requires that an employer takes reasonable care to protect their employees, who are reasonably foreseeable victims should the duty of care be broken. In addition to the common law implied term, statute protects employees in the form of the Health and Safety at Work Act 1974. Both statute and common law run side by side and as such, the two systems complement each other and interrelate so that, often, an employee will allege both a breach of contract and a breach of statute (for example, Bux v Slough Metals [1973] 1 WLR 1358). Only the common law duty is implied into the contract of employment and thus we will only deal with this aspect. The common law standard is a negligence standard, in other words the employer must do all he can to prevent foreseeable injury.
The important word is foreseeable, however. In addition the law requires the employer to act reasonably in all the circumstances (see for example Latimer v AEC [1953] AC 643) and allows the employer to assume that the employee has a modicum of common sense (O’Reilly v National Rail [1966] 1 All ER 499). The duty is owed to each individual employee and not his employees as a whole (Paris v Stepney Borough Council [1951] AC 367). The cases raise two important issues.
How far can the employer balance the cost of protecting his employees against the likelihood of injury occurring and its potential seriousness and how far should the employer keep up to date with knowledge in the area?
Such questions were considered by Swanwick J in the case of Stokes v Guest, Keen & Nettlefold (Bolts & Nuts) Ltd [1968] 1 WLR 1776 when he listed a series of factors which should be taken into account when looking at this area. The most ambiguous factor is the final one stated by Swanwick. It can be demonstrated by comparing Latimer above with the case of Bath v British Transport Commission [1954] 2 All ER 542. While the implied term is a general term to ensure the employee‟s safety, the House of Lords in Wilsons and Clyde Coal Company v English [1938] AC 57 identified three specific aspects of the duty – competent staff, adequate plant and equipment and safe system of work. To this list we can add a fourth – the provision of a safe place of work.
1. Safe Place of Work – When looking specifically at the maintenance of safe premises, the court will investigate whether the employer has an adequate reporting system, how he reacts when complaints are reported and whether he has effectively maintained his premises (see for example Braham v Lyons & Company Ltd [1962] 3 All ER 281). How far does the duty extend when employees are working in another‟s premises? This has been decided in General Cleaning Contractors v Christmas [1953] AC 180 and Smith v Austin Lifts Ltd [1959] 1 All ER 81.
2. Safe Plant and Equipment – All machinery, tools and equipment used by the employee should be reasonably safe for use. In the past, if plant or equipment had a hidden defect, which was totally unknown to the employer, and he had purchased from a reputable supplier, then the employer was not liable for any subsequent injury to the employee (Davie v New Merton Board Mills [1959] AC 604). Once the defect had become apparent, however, the employer was liable if he failed to take immediate action (Taylor v Rover Car Company [1966] 2 All ER 181). Since the Employers Liability (Defective Equipment) Act 1969, however, the employer is liable for all injuries arising from defective equipment, even those caused by hidden defects.
3. Safe System of Work – This essentially means that the employer should provide safe working methods. The court will look at a variety of factors including layout of the workplace, training and supervision, warnings and the provision of safety equipment (compare Finch v Telegraph Construction and Maintenance Company Ltd [1949] 1 All ER 452 and Smith v Scott Bowyers Ltd [1986] IRLR 315). The majority of cases raise the issue of how far must the employer go to protect his employees? Ignoring the issue of balancing cost and likelihood of injury, is the duty active or passive? The answer to this depends on the obviousness of the risk to the employee and the likely seriousness of the injury. If the risk of the injury is obvious and not likely to be serious, then the employer will have fulfilled their duty by providing the equipment and telling the employee where it can be found, leaving the employee to use it if he wishes. Contrast Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 and Berry v Stone Maganese Marine Ltd (1971) 12 KIR 13 The question of safe system of work has been raised in recent cases and brought the employer‟s duty to the forefront again. Johnstone v Bloomsbury AHA has already been examined. More recently Walker v Northumberland County Council [1995] IRLR 35 has extended the employer‟s duty to cover mental as well as physical health.
4. Reasonably Competent Fellow Employees – Apart from any vicarious liability which may arise should an employee injure one of his colleagues during the course of his employment, the employer may also be primarily liable. Competence obviously begins at the employee‟s ability to do the job safely, and the training he has received is important (Hawkins v Ross Castings Ltd [1970] 1 All ER 180). Competence, however, is defined more widely than the employees having the ability and training to do the job safely. Practical jokes which go wrong can be just as dangerous and cause as serious an injury (Compare Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348 and Coddington v International Harvester Company of Great Britain Ltd (1969) 6 KIR 146).
Defences to a Common Law Claim
If an employee is injured and sues their employer for breach of his common law duties, there are three defences the employer can raise. Firstly, they can deny negligence. In other words, the employer is arguing that they have done all a reasonable employer would do to protect his employee as in Latimer above. The second defence the employer can raise is an admission of technical negligence, but claim that the injury was, in reality, solely caused by the employee‟s own negligence. This argument is often raised when the employer commits a breach of the Factories Act 1961. Under that legislation liability is strict and the mere fact that a provision has been broken establishes liability without the need to prove negligence. This defence was used in Horne v Lec Refrigeration Ltd [1965] 2 All ER 898. The two defences above extinguish liability. The third defence reduces rather than totally eliminates the employer‟s liability. This is the partial defence of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. This provides that fault for the injury can be apportioned between the employer and the employee, where the negligence of the employee himself has been partially to blame for the injury or the severity of the injury. An application of the defence of contributory negligence can be seen in the aforementioned Bux case. The percentage by which the employee‟s damages may be reduced depends on the extent of his blameworthiness, a matter which is decided by the court.
Vicarious Liability
While the law imposes the duty to employ reasonably competent workers upon the employer, this duty does not help the employee who may be injured by one of their colleague‟s negligence if the employer had no knowledge of the lack of competence. Likewise, it does not help a third party who may be injured by the negligence of one of his employees. As such, in addition to the liability that an employer may incur because of his (the employer‟s) negligence, he may also be liable if his employee injures someone else during the course of his employment. This is the principle of vicarious (substituted) liability. This has already been dealt with in the core unit but it should be noted that it has a major impact in this area, in particular note the House of Lords decision in Lister v Helsey Hall Ltd [2001] IRLR 472 and the Court of Appeal in Mairowski v Guys and St Thomas’ NHS Trust [2005] EWCA Civ 251. The question of whether the employer retains liability (both primary and vicarious) when he lends an employee to another employer can be discovered by examining court decisions including Mersey Docks and Harbour Board v Coggins and Griffith Ltd [1947] AC 1, Morris v Breaveglen [1993] IRLR 350 ,and Sime v Sutcliffe Catering Scotland Ltd [1990] IRLR 228.
Working Time Regulations 1998
From 1st October 1998 the hours an employee could work are subject to the law. The Regulations state that the working week is 48 hours averaged over a 17 week period. Individuals may, however, agree in writing, to a longer working week. The Regulations also lay down rules in respect of rest periods and paid holidays.
Contact Andrew Douglas Wills and Legal Services today via www.andrewdouglaswills.co.uk to see how we could help you with looking to ensure that you are protecting your employees safety in Colchester and throughout Essex.
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