Employers' primary liability - Duty to provide a safe workpl...

Learning Outcomes

This article explains employers' primary liability to provide a safe workplace under English law, including:

• Scope of an employer’s primary liability to provide a safe workplace under English law
• Core common law duties: safe premises, safe plant/equipment, safe system of work, and competent staff
• Meaning and consequences of a non-delegable duty
• Statutory standards and their influence on the standard of care
• Application of these principles to SQE1-style scenarios and indicators of employer liability for workplace injuries
• Distinction between primary liability and vicarious liability
• Role of risk assessments and training within a safe system of work
• Work-related stress claims and leading authorities

SQE1 Syllabus

For SQE1, you are required to understand the employer’s duty to provide a safe workplace in practical terms, with a focus on the following syllabus points:

• the common law duty of care owed by employers to employees regarding workplace safety
• the four core elements of the employer’s duty: safe premises, safe plant/equipment, safe system of work, and competent staff
• the concept and consequences of a non-delegable duty
• the interaction between statutory health and safety requirements and the common law standard of care
• how to identify and apply these principles in workplace injury scenarios
• how courts assess breach (magnitude of risk, seriousness of harm, cost/practicality of precautions)
• the effect of the Enterprise and Regulatory Reform Act 2013 on civil actions for breach of health and safety regulations, and the evidential role of those regulations in negligence
• the Employer’s Liability (Defective Equipment) Act 1969 as it relates to defective equipment
• specific contexts: working on third-party sites, lone working, use of contractors, and work-related stress (Hatton/Barber guidance)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the four main aspects of an employer’s common law duty to provide a safe workplace?
2. True or false? An employer can avoid liability for workplace injuries by delegating safety tasks to an independent contractor.
3. Which statutory act is the primary source of workplace safety obligations in England and Wales?
4. In what circumstances will compliance with statutory health and safety regulations be enough to avoid liability in negligence?

Introduction

Employers in England and Wales owe a primary duty to take reasonable care for the safety of their employees at work. This duty is both a common law obligation and is reinforced by statutory requirements. For SQE1, you must be able to identify the scope of this duty, explain its non-delegable nature, and apply it to practical scenarios involving workplace accidents or injuries.

Key Term: employer’s primary liability
The personal, non-delegable duty of an employer to take reasonable care for the safety of each employee at work.

Key Term: non-delegable duty
A duty that cannot be avoided by appointing others to perform it; the employer remains responsible even if tasks are delegated.

Key Term: safe system of work
The organisation, supervision, and method of carrying out work so as to minimise risks to employees’ health and safety.

Key Term: statutory standard
A safety requirement imposed by legislation or regulations, often used as a benchmark for the standard of care in negligence.

The Common Law Duty to Provide a Safe Workplace

Employers owe a personal duty of care to each employee. This duty is non-delegable: the employer cannot escape liability by appointing others to perform safety-related tasks.

The classic authority is Wilsons & Clyde Coal Co Ltd v English, where the House of Lords confirmed that the employer’s duty is to take reasonable care for the safety of employees in all circumstances of their employment.

The duty is commonly broken down into four main aspects:

• providing safe premises and a safe place of work
• providing safe plant, materials, and equipment
• providing a safe system of work (including supervision and instructions)
• providing competent staff

These elements often overlap. For example, a failure to train (system of work) can manifest as unsafe use of otherwise sound equipment; an unguarded machine may raise issues both of equipment and of system.

Safe Premises

Employers must ensure that the workplace is physically safe. This includes maintaining the structure, lighting, ventilation, and addressing hazards such as slippery floors or unsafe walkways.

The duty extends beyond an employer’s own premises. If employees are sent to work on third-party sites, the employer must assess foreseeable risks there and implement an adequate system to keep employees reasonably safe while on those premises. The obligation is one of reasonable care, not absolute safety. Latimer v AEC Ltd illustrates this: after flooding, the employer used sawdust and warnings; closing the factory was not required where precautions taken were reasonable and proportionate to the risk.

Practical points commonly examined:

• foreseeability: Was the hazard known or ought it to have been identified on a reasonable inspection?
• duration and layout: Are walkways, stairs, and access routes adequately lit, marked, and maintained?
• dynamic risks: Weather, transient hazards (spills), or changing site conditions call for prompt remedial action and warnings.
• third-party sites: Employers must evaluate risks at client sites and adjust systems (method statements, supervision) accordingly.

Safe Plant and Equipment

Employers must provide and maintain equipment and machinery that is safe and suitable for use. This includes regular inspection, maintenance, guarding, and provision of necessary safety devices and PPE. “Plant” is interpreted broadly: it includes items used for work, not just heavy machinery. If inadequacies arise from defective equipment sourced from others, the Employer’s Liability (Defective Equipment) Act 1969 attributes liability to the employer where a defect in equipment provided for the purposes of the employer’s business causes injury, even if the defect is due to a third party’s fault. The employer can then seek contribution or indemnity from that third party, but remains liable to the employee.

Routine issues:

• guarding: Interlocks, emergency stops, and fixed guards should be in place and maintained.
• compatibility: PPE must be suitable for the task and individual (size, condition, and performance).
• inspection regimes: Frequency and competence of inspections (e.g., for lifting equipment) must accord with recognised standards and risk.
• instructions and warnings: Safe use instructions must be accessible and comprehensible to the workforce.

Safe System of Work

Employers must organise work in a way that minimises risks. This includes task planning, sequencing, training, supervision, communication, and adapting procedures to changing circumstances. It is not enough to devise a safe method; it must be implemented and enforced.

Typical features of a safe system:

• risk assessment and method statements that are realistic, specific, and implemented
• training (initial and refresher), competency checks, and supervision levels tailored to task complexity and worker experience
• clear instructions, signage, and permit-to-work systems where relevant (e.g., confined spaces, hot works)
• dynamic control: adjust the system when conditions change (e.g., different premises, new equipment, adverse weather)
• enforcement: take reasonable steps to prevent habitual breaches of rules (and address known unsafe behaviours)

Classic illustrations include Speed v Thomas Swift (sequencing and coordination in loading operations) and General Cleaning Contractors v Christmas (employer’s duty to devise and implement safe methods when employees work on third-party premises). McDermid v Nash Dredging emphasises that the duty to provide a safe system is personal and non-delegable; it cannot be discharged by delegating to a manager or assuming another entity’s system suffices.

Work-related stress sits within the safe system duty. The Hatton v Sutherland guidance, approved in Barber v Somerset, frames the threshold as foreseeability: is injury to health through stress at work reasonably foreseeable in the individual employee’s case? Relevant factors include the nature and extent of the work, signs from the employee, prior absences, and the employer’s knowledge. If foreseeable, the employer must take reasonable steps (e.g., adjustments to workload, support, monitoring).

Competent Staff

Employers must recruit and retain staff who are competent and adequately trained. Known risks posed by particular individuals (e.g., persistent horseplay, aggression, or carelessness) must be addressed. In Hudson v Ridge Manufacturing Co Ltd, the employer was liable where it knew or ought to have known of an employee’s persistent dangerous practical jokes and failed to take steps to stop them. Competence also encompasses appropriate supervision, especially for new or inexperienced workers.

The Non-Delegable Nature of the Duty

The employer’s duty is personal and non-delegable. Even if an employer appoints a manager, supervisor, or independent contractor to carry out safety tasks, the employer remains liable if reasonable care is not taken. This non-delegable duty is particularly important where work is carried out on another’s premises or as part of a multi-employer operation. The employer must still ensure that an adequate safe system is in place, adapted to the actual environment and enforced.

Exam Warning
For SQE1, remember: an employer cannot avoid liability for workplace injuries by arguing that safety was delegated to another employee or an outside contractor. The duty is non-delegable.

The same principle applies to systems devised by third parties: if an employee is injured because a third party’s system was unsafe or not enforced, the employer can still be primarily liable to the employee, then seek contribution from the third party.

Worked Example 1.1

Scenario:
A factory owner hires an independent contractor to service a machine. The contractor negligently fails to spot a dangerous fault. An employee is later injured when the machine malfunctions.

Answer:
The employer remains liable to the injured employee. The duty to provide safe equipment is non-delegable. The employer can claim against the contractor, but this does not affect the employee’s right to compensation from the employer.

Worked Example 1.2

Scenario:
A warehouse floor is flooded after heavy rain. The employer spreads sawdust and warns staff, but does not close the warehouse. An employee slips and is injured.

Answer:
The employer has likely met the standard of care. The court will consider whether the precautions taken were reasonable in the circumstances. If closing the warehouse would have been disproportionate to the risk, the employer is not liable.

Worked Example 1.3

Scenario:
An employee with sight in only one eye is not provided with protective goggles. He is blinded in his good eye during work.

Answer:
The employer is liable. Knowing the employee’s vulnerability, the employer should have taken extra precautions. The standard of care is higher where the potential harm is more serious.

Worked Example 1.4

Scenario:
Window cleaners employed by X Ltd work on a client’s building. The client provides no edge protection. X Ltd assumes the client’s procedures are sufficient and provides no method statement or special equipment. A cleaner falls.

Answer:
X Ltd is likely liable. The employer’s safe system duty is non-delegable and applies on third‑party premises. It should have assessed the site, devised a safe method (e.g., suitable access equipment and anchorage), trained, and supervised. Reliance on the client’s arrangements is not enough.

Worked Example 1.5

Scenario:
An employer issues cut‑resistant gloves purchased from a reputable supplier. Unknown to the employer, a manufacturing defect causes the glove to split during use, injuring an employee’s hand.

Answer:
The employer is liable. Under the Employer’s Liability (Defective Equipment) Act 1969, injury caused by a defect in equipment provided for the purposes of the business is attributed to the employer, even if the defect is the fault of a third party. The employer may seek contribution from the supplier or manufacturer.

Worked Example 1.6

Scenario:
A social worker returns from a stress‑related absence. The employer reinstates the same caseload without adjustments or monitoring. The employee soon suffers another breakdown.

Answer:
Liability is likely. In light of prior illness, further psychiatric injury was reasonably foreseeable. Reasonable steps (reduced caseload, support, review) were required under the safe system duty (Hatton/Barber).

Worked Example 1.7

Scenario:
A trained operator removes a machine guard to clear a jam, contrary to clear instructions, and is injured.

Answer:
The employer still owes a non‑delegable duty to provide a safe system (including training, guarding, and enforcement). If that duty was met, the employee’s damages may be reduced for contributory negligence. If instruction, supervision, or guarding were inadequate, primary liability will also attach.

The Standard of Care and Statutory Influence

The standard of care is that of a reasonable employer in the circumstances. Courts consider the magnitude of the risk, the seriousness of potential harm, and the cost and practicality of precautions. Relevant factors include:

• foreseeability of injury and gravity of consequences (Paris v Stepney Borough Council)
• likelihood of harm occurring and availability of safeguards (Bolton v Stone type reasoning adapted to workplace realities)
• social utility is rarely a strong counterweight in workplace safety; lawful business activity does not justify avoidable risks
• state of knowledge at the time (Roe v Minister of Health): assessed against knowledge reasonably available when the accident occurred

Statutory health and safety regulations, especially the Health and Safety at Work etc Act 1974 (HSWA 1974), set minimum standards. While breach of statutory duty is generally not actionable in civil claims following the Enterprise and Regulatory Reform Act 2013 (s 69), the content of regulations remains highly relevant evidence of what a reasonable employer ought to have done. In practice, courts frequently look to regulations such as the Management of Health and Safety at Work Regulations 1999 (risk assessments, health surveillance, information and training), Provision and Use of Work Equipment Regulations 1998 (suitability, maintenance, guarding), and the Personal Protective Equipment at Work Regulations, as benchmarks for reasonable precautions.

Key Term: Health and Safety at Work etc Act 1974 (HSWA 1974)
The main statute imposing general duties on employers to ensure, so far as reasonably practicable, the health, safety, and welfare of employees at work.

“Reasonably practicable” encapsulates a balance between the risk and the sacrifice (in time, trouble, and cost) of the precautions. However, the bar is high for serious, foreseeable harm; inexpensive, effective precautions will normally be expected.

Risk assessments are central. They are not an end in themselves; the resulting controls must be implemented and enforced. Training and supervision must be commensurate with task complexity and worker experience, with additional monitoring where an employee’s vulnerability or history indicates heightened risk.

Breach of Duty and Causation

To succeed in a negligence claim, the employee must show:

• the employer owed a duty of care (almost always satisfied)
• the employer breached that duty (failed to take reasonable care)
• the breach caused the injury (factual and legal causation)

The court analyses what the employer knew or ought to have known and whether further precautions were reasonable. In factual causation, the “but for” test applies; in some cases of concurrent causes, “material contribution” principles may assist. Remoteness follows Wagon Mound (No 1): the kind of damage must be reasonably foreseeable; the eggshell skull rule applies to extent of harm.

Typical evidential strands:

• risk assessments, training records, maintenance logs, toolbox talks, supervision notes
• prior incidents, near misses, and complaints indicating foreseeability
• physical condition of the workplace and equipment at the time
• whether the employer’s system was only written or actually implemented and enforced

In appropriate cases (e.g., unexplained mechanical mishaps under employer control), the inference of negligence (res ipsa loquitur) may arise, but courts still scrutinise the factual matrix carefully.

Statutory Duties and Their Role

Statutory health and safety regulations (e.g., Management of Health and Safety at Work Regulations 1999) set out specific requirements for risk assessments, training, and equipment. While breach is not usually actionable in civil claims post‑2013, the standards they set are highly relevant in determining whether the employer has met the common law duty. HSE enforcement (improvement/prohibition notices and prosecutions) proceeds separately; evidence from such proceedings can be persuasive in civil litigation.

Employers should align policies and practices with applicable regulations:

• identify and assess significant risks (including stress where applicable)
• implement hierarchy of controls (eliminate, substitute, engineer, administer, PPE)
• maintain and inspect equipment; keep auditable records
• provide suitable information, instruction, training, and supervision
• monitor and review controls, especially after incidents or changes in process

Revision Tip
For SQE1, always consider whether statutory standards have been met, but remember that compliance is not always enough if further precautions were reasonable in the circumstances.

Defences

Employers may raise the defences of contributory negligence or, rarely, consent (volenti). Contributory negligence reduces damages to reflect the employee’s share of responsibility (e.g., removing guards, ignoring clear instructions, failing to use provided PPE). The reduction depends on culpability and causative potency. Consent is rarely successful in employment given the inequality of bargaining power and the non-delegable nature of the duty; courts are slow to infer that an employee freely and voluntarily accepted the risk of the employer’s negligence.

Illegality (ex turpi) is unusual in this context; it requires a close connection between unlawful conduct and the injury such that allowing recovery would affront public policy.

Summary

The practical application is fact-sensitive. Courts look at what risks were or should have been identified, what reasonable precautions were available and taken, and whether the employer implemented and enforced a genuinely safe system in the circumstances (including on third‑party sites and when using contractors). Regulations guide the standard of care; the duty remains at common law and is personal to the employer.

Key Point Checklist

This article has covered the following key knowledge points:

• The employer’s primary liability is a personal, non-delegable duty to take reasonable care for each employee’s safety at work.
• The four core aspects of the duty are: safe premises, safe plant/equipment, safe system of work, and competent staff.
• The duty cannot be delegated to managers, supervisors, or contractors; it applies on third‑party sites and in multi‑employer settings.
• Statutory health and safety standards set minimum requirements and are strong evidence of reasonable care, but are not always conclusive; civil actions generally proceed in negligence.
• The Employer’s Liability (Defective Equipment) Act 1969 attributes liability to employers for injuries caused by defects in equipment provided for work, even if the defect is the fault of a third party.
• Stress at work falls under the safe system duty; foreseeability, based on Hatton/Barber, triggers a duty to take reasonable steps.
• To establish liability, the employee must prove duty, breach, and causation; the standard is that of a reasonable employer in the circumstances.
• Relevant factors for breach include foreseeability, magnitude of risk, gravity of harm, practicality and cost of precautions, and the state of knowledge at the time.
• Defences are limited; contributory negligence may reduce damages, but consent rarely applies in employment contexts.

Key Terms and Concepts

• employer’s primary liability
• non-delegable duty
• safe system of work
• statutory standard
• Health and Safety at Work etc Act 1974 (HSWA 1974)