By Law Teacher
4.1.1 Personal Liability – Introduction
Welcome to the first lesson of the fourth topic in this module guide – Employers’ Liability; Personal Liability! An employers’ liability to his employees can be both derived from the common law and statutory. The common law aspect is concerned with the employers’ personal liability to ensure the physical safety of his employees.
At the end of this section, you should be comfortable defining an employers’ common law duties to his employees with regards to safety. You should be able to define the elements relating to the reasonable duty of care to ensure the safety of employees and also understand how this duty relates to individual employees.
This section begins by exploring the duties owed by an employer before defining the four main elements regarding ensuring the safety of employees. It deals with these in turn, addressing the place of work, equipment and materials, systems of work and competent staff in detail. Finally, the section addresses a handful of other rules and principles applying to employers’ common law duties including that the imposition of a duty of care must be fair, just and reasonable, how the duty applies with respect to different employees and possible defences to liability.,
Goals for this section:
- To understand what duties an employer has to his employees personally under common law.
Objectives for this section:
- To know the general duty of ensuring the safety of employees and how this relates to certain factual scenarios
- To know how the duty applies to certain types of employee.
- To appreciate possible defences to the common law duties of the employer.
4.1.2 Personal Liability Lecture
The law covering employers’ duties can be neatly split into two categories – those laws which have developed as a matter of common law, and those laws which are covered by statute. This chapter will deal with the former category.
The Duty to Take Reasonable Care to Ensure the Safety of Employees
Any given employer holds a duty to take reasonable care to ensure the safety of their employees. It is important to note that this duty is personal and non-delegable. The authority for this duty can be found in Wilsons & Clyde Co Ltd v English.
It should be noted that the different factors relating to safe working, discussed below, must all coincide for a workplace to be considered safe, as in Bax v Slough Metals, discussed below.
Safe Place of Work
In order for a place of employment to be considered safe, it must include safe premises in a safe working environment. The standard which must be met is that of the ‘reasonably prudent employer’. The application of this principle can be seen in Latimer v AEC Ltd.
The duty to provide a safe place of work extends to situations in which employees are tasked with going off-site to work in places which are not controlled by their employer. This means that those whose jobs involve visiting different places can enjoy a similar level of protection as those who work in the same location every day. In Wilson v Tyneside Window Cleaning Co.  2 QB 110 the court held that employers still owe a duty of care to employees even when they are working outside of their employer’s premises.
This duty will be heightened if the employer is aware of a particular off-site hazard (most likely because it has been encountered by an employee before.) In General Cleaning Contractors v Christmas  AC 180 it was ruled that whilst employers do not necessarily have to inspect every set of premises their employees visit, they still have to take reasonable precautions to allow their employees to deal with hazards they might face.
In Cook v Square D Ltd  ICR 262 the bench listed the following (non-exhaustive) factors in determining workplace safety: the location of where the work is to be done, the nature of the building in which the work is completed, the nature of the work required, the expertise and experience of employees, the degree of control which might be expected from the employers, and whether the employer is aware of any particular dangers which might manifest themselves. It was also noted in this case that there exists a tipping point in terms of the number of employees and the length of their employment at which employers would be expected to take a more proactive approach to off-site safety.
Safe Equipment (and Materials)
An employer must provide equipment and materials which are safe and properly maintained. For example, if employees are working with a particular material it will be expected that the material supplied will be of a high-enough quality to avoid unnecessary risk, Knowles v Liverpool County Council.
Despite the wide nature of the duty, if an employer can successfully argue that defective or lacking equipment did not cause their employee’s injuries, then they will be able to avoid liability. This was the case in McWilliams v Sir Arrol & Co Ltd  1 WLR 295.
Safe System of Work
Because of its wide-remit, it is difficult to pin down exactly what characteristics a good or bad system of work has. It is for this reason that courts tend to take a case-by-case approach to evaluating whether liability exists. Speed v Thomas Swift & Co Ltd provides one such illustration of what a system of work can be said to entail: the physical layout of the job, the sequence in which work is carried out, the provision of warnings and notices of particular dangers, including special instructions where necessary, and finally the need to improve the system as necessary, or modify it to deal with particular circumstances.
This means that a wide range of circumstances are covered by the duty of provide a safe system of work. This includes situations in which employees are not warned of a given danger – as in Pape v Cumbria County Council  2 All ER 211. Also, an employer cannot simply provide a safety measure and then forget a particular risk exists. This can be seen in Bax v Slough Metals  1 WLR 1358. If a particular risk has manifested itself, an employer will be mandated to take preventative action. This was the case in Rahman v Arearose Ltd  QB 351, where the court held that the claimant’s employers were liable as they had been put on notice of a risk but had failed to change working practices to deal with it.
The duty to provide a safe system of working extends to protecting the mental health of employees (limitations on claims psychiatric harm withstanding.) This is illustrated in Walker v Northumberland County Council  1 All ER 737 where it was held that there was no reason why an employer’s duty to provide a safe system of work did not extend to preventing psychiatric harm. The defendant employer should have been put on notice of the risk by the claimant’s first leave of absence, and should have taken steps to provide adequate assistance to the claimant when he returned. There exist issues of foreseeability with regards to psychiatric harm in the workplace – it is difficult to foresee which employees might be adversely affected by such stress.
There is however a limit to the actions expected of an employer in respect of providing a safe working system. This was the ruling in Woods v Durable Suites Ltd.Thus whilst an employer has a duty to put a safe system of work in place, they are still entitled to trust employees to follow it as sensible human beings.
Finally, employers must provide competent colleagues for their employees. The need to provide competent staff can give rise to two different types of liability – there can be a breach of the duty to provide competent staff, but also a claim can arise as a result of vicarious liability.There are also situations in which only the employer’s duty is relevant, when an employee has acted poorly, but outside of the remit of their duties. This was the situation in Hudson v Ridge Manufacturing Co Ltd  2 QB 348.
Other Issues in Employers’ Liability
There also exist a handful of other rules and principles which apply to employers’ common law duties.
The Imposition of a Duty of Care Must Be Fair, Just and Reasonable
As with other forms of duty in tort, it must be fair, just and reasonable to impose a duty in the given situation. Whether a particular risk is acceptable will depend a lot on the profession being practiced. The court will therefore consider wider policy considerations when imposing a duty. This was the case in Mulcahy v Ministry of Defence  2 All ER 758.
The Duty Extends Beyond the Four Elements
It is important to remember that whilst the four elements of a safe workplace discussed above provide a solid framework for investigating workplace safety, they do not form the hard limits to an employer’s duty. As with negligence in general, the imposition of a duty of care in any given common law situation will depend on the Caparo test.
The Duty Does Not Apply to Independent Contractors
The duty to provide a safe workplace does not extend to all of those employed by an employer. There must first be a relationship of employer-employee in place. Because of this, independent contractors cannot rely on an employer’s common law duty.
The Duty Exists Towards Each Individual Employee
The duty that an employer has towards their employees is not an abstract one. Instead, it is of a practical nature, and the characteristics of a given individual employee can and will alter the nature of an employer’s duty. In Paris v Stepney Borough Council  AC 367 (also discussed in the chapter on standard of care) the employer had an obligation to provide certain equipment to the claimant because of his individual characteristics.
There Exists a Limit to the Expected Standard of Care
Although employers are expected to ensure the safety of their employees where reasonable, there is a limit how far they must go. There are certain employments which will carry a certain risk regardless of the safety measures put in place for instance. In such situations the only way to avoid the risk would be to refuse to employ an employee in the first place, which is clearly no solution at all –Withers v Perry Chain Co Ltd  1 WLR 1314.
Modification of the Duty (is Largely Impossible)
Terms of a contract of employment which seek to exclude employer duties will generally not be binding. See Johnstone v Bloomsbury Health Authority QB 333. Of course, whether a particular contract term violates this rule will depend on the context.
Since the duty to provide a safe workplace is a common law one, employers are able to use common law defences when fighting a claim. The most relevant of these will be consent, since employees are in a workplace of their own free volition. Of course, whilst an employee might be held to consent to a low level of risk, a court is highly unlikely to rule that an employee has consent to being maimed by an unsafe machine, or splashed with molten metal.
Secondly, there will often be situations in which a claimant employee has contributed to their own injury, through misusing a piece of equipment or failing to heed a safety warning. In such circumstances, the defence of contributory negligence may well apply. Both of these defences will be covered in more detail in a later chapter.
4.1.3 Personal Liability Lecture – Hands on Example
It is Fry’s first day at Sauce Co, a factory which specialises in the manufacture of frozen pizzas. The factory has just received a new bulk order, and is currently rushing to fulfil the order. The manager who hired Fry tells him that because of the large order, he does not have time to train Fry, and that he is sure that Fry will be able to get along just fine. He puts him to work on his own in the factory’s baking room, where he is tasked with part-baking pizza bases before topping are added.
The factory has just been fitted with a state of the art lighting system by a local electrical engineer. Unfortunately, it emerges that the electrical engineer is unlicensed – something Sauce Co failed to check. One of the brackets holding one of the new lights has not been fitted correctly. The vibrations from the machinery below cause the light to become loose and it falls onto one of the factory’s workers – Amy. She suffers a broken arm as a result.
Fry goes to empty the pizza oven, but discovers that the oven won’t turn off. The oven has an emergency shutoff button, but it is unmarked. Fry leaves to go get help. Whilst he is away, the oven bursts into flames. Fry returns with a colleague, Hermes. When they open the door to the bake room air rushes in and the fire bursts from the room in a backdraft. Both Hermes and Fry are badly injured by the flames.
After the event a safety report is written up by the factory’s safety co-ordinator – Leela. It is noted in the report that Leela recommended two months ago that the oven be properly labelled, and that it constituted a hazard in its current form.
Leela has just returned from a leave of absence – she was off work sick due to the considerable level of workplace stress she was experiencing in the unsafe factory. The oven fire is the last straw for Leela, and she has a nervous breakdown. She later confides in her therapist that she had not had a day off of work for nearly six months, and was completely overburdened with work. Despite asking for assistance on multiple occasions, this was not provided.
Fry, Amy, Leela and Hermes all want to bring a case against Sauce Co for their respective ailments and injuries. Advise them on their claims, concentrating on Sauce Co’s common law duties towards their employees. Do not discuss statute.
Answer: There are four different claimants to discuss here, each with a claim on the basis that Sauce Co has failed to meet its common law duty to ensure its employees safety, under Wilsons & Clyde Coal Co Ltd v English  AC 57.
Amy’s claim will be on the basis that Sauce Co have failed to provide her with safe premises in which to work. Under Latimer v AEC Ltd  AC 643 Sauce Co will be expected to act as a reasonably prudent employer would have. Their failure to ensure that they employed a licensed electrical engineer appears to dip below this expected standard. Furthermore, the non-delegable nature of Sauce Co’s obligations to provide safe premises for its employees means that ultimately, responsibility for the factory’s state of repair rests with Amy’s employer. As such, Amy is likely to have a valid claim.
The harm done to Fry can be considered a failure to create a safe system of work, as in Speed v Thomas Swift & Co Ltd  1 KB 557 – Sauce Co should have had provisions in place to give Fry sufficient training, and should not have placed him in a situation in which a lack of training could have been dangerous (i.e. assigning him to the oven.) Furthermore, Sauce Co should have ensured that safety measures (such as emergency shutoff buttons) were properly marked – indeed, the need to provide proper signage was mentioned in Speed. This can also be considered as the provision of unsafe equipment, as in Knowles v Liverpool County Council  1 WLR 1428 – emergency shutoff buttons are designed so that they can be used in an urgent situation. An emergency button which is not labelled as such is essentially useless for this purpose, meaning that the oven was in an unsafe condition.
Hermes injuries can be attributed to a failure to provide competent staff as colleagues (or rather, the failure to train staff up to a sufficiently competent level. Sauce Co were aware of Fry’s inexperience, and should have taken steps to train him. This can be likened to Hudson v Ridge Manufacturing Co Ltd 2 QB 348, in which the claimant’s employers were aware that a colleague was behaving poorly, but did nothing to alleviate the problem. To a certain extent, Hermes has also been failed by the working system in place in the same way as Fry – a system which does not properly train one’s colleagues in a factory setting is not a safe one.
Finally, there is Leela’s nervous breakdown, which can be considered a failure to provide a safe system of working. Leela has previously been overworked far beyond what might be considered reasonable. She has made this known to her employers, and has previously had time off work for that very reason. As in Walker v Northumberland County Council  1 All ER 737 once it became clear that Leela was susceptible to stress-related psychiatric injury, Sauce Co should have taken steps to deal with her workload. Indeed, it might even be argued that her unreasonably heavy workload was the cause of her first leave of absence, and that therefore she might have a claim for psychiatric injury for that, as well as her nervous breakdown. Leela’s case is also supported by Paris v Stepney Borough Council  AC 367 – just as the claimant’s employers should have taken proper steps to protect the sight of a one-eyed mechanic, Leela’s employers should have taken steps to protect the wellbeing of an employee they know is both susceptible to stress-related injury and overworked.