Employer's Duty of Care
An employer has a duty of care to protect his or her employees.
Failure to do so could be deemed as negligence.
What is negligence?
In its broadest sense, negligence can be said
to occur when someone causes injury or loss to another person as a
result of being careless or reckless – this might be as a result of
a positive act or as a result of failing to do something that they
ought to have done. An example of negligence might be where
someone were to carelessly pull off in their car in reverse gear,
as opposed to pulling forward as intended, and, as a result, hits
and injures someone behind them.
There are three main elements to negligence in
UK law and each must be satisfied in order to succeed in claim for
- Firstly, it must be established that the
person who caused the injury owed a duty of care to the injured
party. In the above example, this would be established, as
the driver of a vehicle has a general duty of care to other road
users and pedestrians.
- Secondly, it must be established that the
person who caused the injury breached their duty of care. In
the above example, this would be made out as the driver of the care
was negligent in failing to ensure that their car was in the
correct gear before pulling off.
- Thirdly, it must be established that any
injury (or loss and damage) suffered by the injured person was
caused as a result of the negligence of the alleged
wrongdoer. This is commonly known as the ‘but for’
test. In the above example, if the individual struck by the
car had suffered a broken leg from the impact, this test would be
satisfied, as their leg would not have been broken ‘but for’ the
negligence of the driver.
When considering if any loss or damage
suffered is related to the alleged negligence, the courts will
assess how closely the injury or loss is related to the alleged
negligence. To go back to the above example, if the injured
person were to suffer a broken leg as a result of the car hitting
him, it would be fairly clear that ‘but for’ the car hitting him he
would not have broken his leg. Providing it was established
that the wrongdoer owed the injured man a duty of care and that
duty of care was breached, one would expect the injured person to
be able to recover compensation. However, what happens if the
injured man is taken to hospital by ambulance and the ambulance is
involved in an accident? Any further injuries sustained may
be considered too remote to hold the original wrongdoer
responsible. Of course, in such a situation, there may be a
separate course of action against the person who caused the second
The person bringing the claim (the claimant)
has to prove that the wrongdoer (the defendant) was
negligent. It is not for the defendant to show that he was
How does negligence apply in the workplace?
The House of Lords have said that the
employer’s duty is:
“Personal to the employer, to take
reasonable care for the safety of his workmen, whether the employer
be an individual, a firm or a company and whether or not the
employer takes any share in the conduct of the operations’"
(Wilson and Clyde Coal Co Ltd v. English, as per Lord Wright
The duty upon the employer is therefore a
wide-ranging one and, generally, one that he or she cannot delegate
to anyone else.
Employer practicable duty of care responsibilities
The duty placed upon an employer in respect of common law of
negligence is not an absolute duty. The employer duty of care is to
take such steps that are reasonably practicable to ensure the
safety of his or her employees whilst they are at work.
What amounts to a reasonably practicable step for one employer
may not be regarded as a reasonably practicable step for
another. When assessing whether an employer has been
negligent several factors should be considered on a case by case
basis. The factors to be considered include:
- the likelihood of an injury occurring.
The more foreseeable or likely it is that an injury might occur is
an important factor which the courts will take into account.
If a hazard has been present in the workplace for some time and has
caused injury in the past, it is clearly more likely that a court
would find that a further injury was foreseeable.
- the seriousness of the outcome. The
greater the risk, the more the law might expect an employer to
guard against it – the greatest risk being loss of life.
- proportionality. Put simply, the courts
will look to consider whether the time, effort and cost of
taking a particular precaution are proportionate to the risk
involved. To take an extreme example, a court would be
unlikely to find that it would be proportionate to expect an
employer in a stonemason’s yard to put a roof over the yard to
protect against a falling meteor, as the time, effort and cost
involved would be significantly disproportionate compared to the
risk of a meteor falling there and injuring someone.
- the size of the employer. Limited
resources do not necessarily reduce the duty of care an employer
owes to his or her employees; however, the courts have tended to
apply an even higher standard of care to larger organisations with
When considering whether an employer has been
negligent, the three elements of negligence outlined above are
applied: i.e. (i) to show that the employer owed the employee a
duty of care, (ii) that the duty has been breached and, as a result
of the breach, (iii) the employee has suffered injury or loss.
What if the negligent act or omission is carried out by a
An employer can be held liable for the
negligence of his or her employees if the incident occurred
during the course of the employee’s employment. The result is
that a claim in negligence or breach of statutory duty can be
brought against an employer where one of his or her employees has
been negligent. The situation where an employer is held
liable for the acts of omissions of his or her employees is known
as vicarious liability.
To take an example, if employee A were to
leave electric cables trailing across the floor in the workplace
without making any attempt to secure them or reduce the risk of
someone tripping over them (such as by stopping people walking
through that area), and employee B were then to trip and injure
himself, there would be a case to say that the employer should be
held vicariously liable for the negligence of employee A.
There are other more specific statutory provision which would apply
more directly to this example (such as Regulation 12 of the
Workplace (Health, Safety and Welfare) Regulations 1992), although
the example is still illustrative of the point, although this may
not always be the case and one would always seek to include
allegations of vicarious liability for completeness.
It should be noted that an employer will not
always be held vicariously liable for the actions of his or her
employees. For example, a deliberate act of violence by a
fellow employee may not result in the employer being held
vicariously liable. If an employee causes a road accident
when running his own errands during working time, an employer may
not be held vicariously liable.
However, it should be noted that all cases are
fact sensitive and need to be considered individually.
What happens if the injured person is also partly to blame for
Although in many accidents the injured person
may hold no blame for their accident, there are occasions where the
injured party is also partly responsible. This concept is
known as contributory negligence.
To take a simple example, passenger A and
passenger B are travelling in a car driven by C. C
negligently causes the car to crash. Both passenger A and
passenger B are injured as a result. Under the normal common
law of negligence, both passenger A and passenger B would be
expected to have a case against C. However, passenger A did
not wear a seatbelt, where passenger B did.
One would expect passenger B to recover 100%
of any compensation assessed as being appropriate for his injuries
and losses. However, what about passenger A? Would he
lose his right to claim compensation for his failure to wear a
The answer here would be no. Passenger A
did not cause or contribute to the accident. The case against
C, the driver is therefore still made out: i.e. that he owed
passenger A a duty of care, he breached that duty and as a result
of his negligence, passenger A has suffered injury.
Passenger A’s failure to wear a seatbelt,
however, will prevent him from recovering 100% of any compensation
he might otherwise have been entitled to. In this instance,
the courts would tend to apply a discount of 25% to the overall
value of passenger A’s claim. For example, if his claim were
valued at £10,000, he would only receive £7,500 (£2,500 having
being deducted to represent his contribution to his injuries).
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