Do Employers Have a Duty of Care to Employees?

Posted: 11 Apr, 2022.

Under common law, all employers have a duty of care towards their workers, no matter how many employees they have or the environment they work in. By definition, ‘duty of care’ means the moral or legal obligation to ensure the safety and wellbeing of others.

For employers, this means that they have a responsibility to take all reasonably practical steps to ensure the health, safety, and wellbeing of their employees. The reasonableness of a protective measure can be determined by considering the potential risk of harm to the employee compared to the cost and practicality of putting the safety measure in place.

This means that under the duty of care common law, employers are required to:

  • Ensure that all working environments are safe
  • Ensure staff are protected from discrimination, bullying and harassment
  • Conduct a risk assessment
  • Provide adequate training and PPE
  • Ensure that staff do not work excessive hours
  • Protect the physical and mental health of employees
  • Provide a way for staff to raise concerns

Organisations must also be aware that duty of care extends beyond employees, applying to visitors, contractors, service users, and members of the public who could be exposed to the activities being carried out.

Employers legal responsibilities to employees

There is no specific regulation or legislation referring to duty of care; instead, it has been established through case law claims of negligence. In order to fulfil their full legal responsibilities, employers must abide by relevant health & safety and employment law, as well as the additional measures imposed by the duty of care common law.

This means that if the failure to conduct a risk assessment and implement necessary measures led to the harm of an individual, the organisation could be liable for breaches of the Health and Safety at Work Act, and gross negligence relating in a personal injury case.

Although employers do not have to provide a workplace completely free from risk, they can be prosecuted if they do not implement all seemingly reasonable measures to keep the affected safe from harm.

“It is not good enough for companies to assume they are doing all they can to control the risk just because there have been no previous incidents.”
Richard Littlefair HSE Inspector, September 2020 R v Leadec Ltd 2020

Breach of duty of care

A breach occurs when a person or organisation fails to meet the reasonable standard of protection towards another person or organisation, causing or contributing to either physical or mental harm.

In order to prosecute and prove negligence, the claimant must be able to prove; a duty of care, a breach of that duty, factual causation and the damages caused. Contrastingly, to prove their innocence, employers must be able to provide evidence that they have taken all reasonable precautions to ensure the safety and welfare of those impacted by its activities.

It is the responsibility of the organisation’s management committee to ensure no harm is caused by its organisation’s activities. They are accountable for enforcing and maintaining the expected standards of good practice. In this context, the management committee can be defined as “a committee of managers or senior members of an organisation who are in charge of directing that organisation”, this includes the CEO or president, chairperson, and all executive-level employees.

Duty of care breaches typically have financial consequences, carrying an unlimited fine, but extreme cases can also result in imprisonment. Additional consequences can be social, as organisations found guilty tend to suffer reputational damages, leading to loss of business and issues with both recruitment and staff retention.

Demonstrating duty of care in the workplace

Organisations can prove that they have taken all reasonable steps to protect duty of care by conducting risk assessments for all activities and implementing the safety measures identified. These risk assessments should then be reviewed and updated at least annually, and every time an accident happens, to ensure any new risks are included. Additionally, employers should record all work-related injuries and incidents in an accident book. This aids compliance with RIDDOR and provides a reference point for identifying trends, such as if multiple accidents were occurring using the same piece of equipment.

Businesses can also demonstrate the measures in place through a ‘Safe at work’ policy, which covers the steps taken to ensure the physical and mental welfare of staff. This should detail the steps taken to reduce the risk of injury, ensure the workplace is kept clean and hygienic, ensure the workplace is comfortable e.g., within the recommended working temperatures, and the policy in place to manage misconduct in the workplace, such as bullying and harassment.

Personal safety technology integrated into organisations’ systems and processes can provide firms with a smarter and more cost-effective way to meet their duty of care and protect at-risk employees. Our own research found an overwhelming shift towards the use of technology and smarter solutions to help protect lone working employees. Some firms are already classifying personal safety devices as PPE and the vast majority plan to increase their use of technology within the next few years.

“Peoplesafe’s service supports our staff operationally and ensures that we are meeting our health and safety obligations regarding duty of care… it’s a win-win scenario.”
Tom O’Connell, Protection & Welfare Services Manager, Wood Green Animal Shelter

Smart PPE enables organisations or employees to identify hazards, provide greater protection, collect data and/or better respond to incidents that occur. Technology can also be used to keep employees safe beyond the working day – for example, devices or apps can be used to help counter the risk of employees travelling home at unsociable hours or in inclement weather conditions. 

“For me, it’s building into that mechanism the final check that somebody has got home safely. We can use [their device] to check that people have got home safely, that they are safe and well. That would close the loop on that individual for that shift.”
David Campell, Eurovia

Benefits of health and safety in the workplace

While employers are legally and ethically required to fulfil their duty of care, there are wider benefits that come with creating a healthy and safe working environment.

Investing in a healthy work environment has been proven to positively impact employee satisfaction, productivity and staff retention, as employees are likely to feel happier when working in a safe place. Being viewed as a responsible employer will likely impact your recruitment process as people are typically attracted to companies with a positive culture.

Employees who feel valued and safe are likely to feel more comfortable while completing their tasks. This, therefore, helps to reduce stress and increase morale among the workforce. Lower stress levels at work are inherently positive and have been shown to contribute to productivity, as employees are able to go home and ‘switch off’ from work at the end of the day, allowing them to come into work the next day well-rested.

Failing to fulfil your legal responsibilities when it comes to protecting employees can become very costly. The HSE estimates that the average cost per non-fatal workplace injury is £8,800, and the top end of fines, typically surrounding fatal injuries, can reach £10 million. As well as the legal costs that come with a breach of responsibilities, a damaged reputation can lead to further financial costs as potential customers may be deterred from using your business. By fulfilling your duty of care, your liability towards incidents is reduced, should one occur, and some safety measures can even reduce insurance premiums. This makes implementing solutions such as PPE or a personal safety device a much more cost-effective alternative.

“Undertake a cost benefit analysis by researching actual and potential incidents, examining whether your risk mitigation is working for the whole process. Not everything is foreseeable, and we found that technology assisted us in providing staff with a further protective measure which was a significant and proportionate approach. You cannot replace people.”
Jennifer Newbury, East Sussex Healthcare NHS Trust

HSE fines

If an employer fails to fulfil their duty of care, they can face criminal proceedings and be fined up to £10 million by the HSE. With conviction rates as high as 93% employers should do all they can to comply with legislation and protect their staff. Calculate how much you could save on HSE fines by implementing an employee safety service:

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