Employer’s liability

We now have to consider circumstances in which it is alleged that an employer is liable to his employees.

In Wilsons and Clyde Co Limited an English (1937) 3 the House of Lords defined the employer’s common law duty as comprising of three separate duties. Employers must take reasonable steps to provide competent staff, adequate material and a proper system of work and supervision. In 1953 in the case of Latimer and AEC Limited 2 49 the House of Lords had added a fourth duty which was to take reasonable steps to provide a safe place of work. All four duties are owed to the employee by the employer and are personal to the employer this means that the employer cannot escape liability for the negligent performance of his duty by saying that it delegated performance to someone else.

With regards to competent staff, this duty will not be breached merely because a fellow worker of the Claimant is incompetent. See the case of Hudson v Ridge Manufacturing Co Limited (1957) 2QB348. Rather it arises where an employer knows or ought to know about the risk that a particular worker is posing to fellow workers. This was confirmed by the House of Lords importers and Commissioner of Police of the Metropolis (2002) 1WLR1607. The duty to provide competent staff means that an employer will need to consider practical issues including (1) how staff are selected (2) provision of training to ensure staff can do their job (3) provision of supervision and (4) dismissal of any employees who continue to pose a risk to fellow staff.

The duty to provide adequate plant and equipment could cover situations where the employer provides poor quality equipment such that it is inadequate to perform the role it is designed for or where the employer fails to provide any relevant material at all. It is quite a demanding duty. It is important that the employer provides all necessary materials to ensure that the working environment is safe. Under the Employer’s Liability (Defective Equipment) Act 1969 any injury resulting from an inherent defect in equipment can be attributable to the negligence on the part of the employer.  This is quite a demanding duty because it means that any issue with the manufacture or production of particular equipment can effectively be blamed on the employer for the purpose of litigation.  In order to sue under this head the injured employee would need to establish that the fault is on the behalf of the third party usually the manufacturer of the equipment and secondly causation i.e. that the fault of the third party caused the employee’s injuries.

The third duty is to impose a safe system of work. This is the widest and therefore the most frequently invoked branch of the employer’s duty.  It can be broadly applied. It can consider the physical layout of a job; a sequence in which the works are carried out and when necessary the provision of training warnings notices safety equipment etc. It is not enough for the employer to just devise a safe system but they must also try and ensure and take reasonable steps to ensure that the duty is complied with.  Complying with this requirement requires an employer to continuously assess the risks inherent in its particular working environment.

In Latimer v AEC Limited (1953) 2 449 the House of Lords considered the duty to provide a safe place of work. in this case they confirm that in addition to the duties set out in Wilsons and Clyde Cole an employer owes a duty to an employee to take reasonable steps to provide a safe place of work. There is an overlap between this common law duty and the statutory duty under the Occupiers Liability Act of 1957.

The common law duty is arguably more onerous than the duty under the 1957 Act in two respects. Under the 57 Act an employer can comply with its duty by delegating work to an independent contractor. This is not the case with the common law duty. Secondly the 1957 Act only applies to premises of which the employer is an occupier. The common law duty applies regardless of where the employees are at work.

In the case of Walker and Northumberland County Council 1995 737 The Court of Appeal confirmed that the duty to provide a safe system of work can extend to an employee who suffers stress as a result of his work. In Hatton v Sutherland 2002 2 the Court of Appeal laid down guidelines to how the Court should deal with stress at work claims. These were subsequently approved by the House of Lords. The Court of Appeal said that the threshold question to determine whether a duty would arise is whether the injury through stress at work was reasonably foreseeable. The Court should then consider the nature and extent of the work done by the employee and signs from the employee themselves.

Breach of duty

Each of the duties owed by an employer requires the employer to take such steps as are reasonable as with any other case in this area an action in negligence will only be able to proceed if you can demonstrate a breach of duty. The approach is largely the same as with general negligence. The Court will assess the standard of care to be expected by looking at all the circumstances of the case. The Court will then have to consider causation in the usual way.