Employer's Liability

Question 1

What is the core duty of care an employer has?

Answer 1

A duty to take reasonable care for its employees’ safety while at work

This is non-delegable

Duty of care in relation to physical harm

Question 2

What are the elements of the duty of care?

Answer 2

1. Competent staff – duty of care by employer to provide fellow competent staff

• They should be trained and selected properly and properly supervised
• Duty to provide competent staff arises where employer knows, or ought to know, about the risk a particular worker poses to others

2. Adequate plant and material – they must supply what is reasonably needed for the employee to do their job; what is supplied must be adequate and suitable
3. Safe system of work – includes layout of job, sequence of work to be carried out, proper training for claimant employee themselves and includes warnings and instructions provided

• Covers adequate supervision for claimant employees
• Employer would need to monitor the system to ensure it is complied with
• Employer would need to take disciplinary action against employees who fail to comply with the system

4. Safe workplace – the physical environment of the workplace must be safe; no tripping hazards on the floor as an example

Question 3

When may a duty of care in relation to occupational stress be owed?

Answer 3

Where the risk of work-related stress harm to the employee was reasonably foreseeable

This may occur if:

• They have a high or stressful workload
• The employee has made it obvious they are struggling (directly or it is visibily clear they are)

Question 4

When may a duty of care in relation to occupational stress not be owed?

Answer 4

It is presumed that an employee is up to the reasonable tasks of the job, and the employer can take what the employee tells them at face value

Being signed off work due to personal issues would mean the problems aren’t work related stress

Question 5

What other elements would be considered if the duty of care was present?

Answer 5

Breach of duty, causation and defences

Question 6

What considerations would be relevant to establishing a breach of duty in an employer’s liability situation?

Answer 6

Broadly, did D fall below standard of a reasonable employer?

They need to take greater care where there are known risks to an employee

Statutory regulations re health and safety may guide what an employer should do, but failing to meet one is not conclusive as breach

Balancing foreseeable risks and precautions as normal