Remaining elements of an employer's liability claim

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Hatim works for a small marketing agency as a field brand representative handling live demonstrations in crowded venues with complex logistics. He has repeatedly raised concerns about inadequate safety measures, including a lack of proper lifting equipment. Despite these complaints, the agency has not updated its protocols or offered any specialized training. During a mall event, Hatim's coworker, who had never received guidance on safe handling techniques, dropped a heavy display fixture on Hatim’s foot. As a result, Hatim contends that the agency should bear responsibility for his resulting medical expenses and lost income.


Which of the following statements best reflects the potential basis for the marketing agency's liability regarding Hatim's injury?

Defining Employer Liability

Employer liability refers to the legal responsibility that employers have towards their employees to ensure their safety and well-being in the workplace. This responsibility arises from both statutory duties imposed by legislation and obligations under common law. Employers must follow specific legal standards to prevent harm to their employees, which include an essential duty of care in the employment relationship.

Statutory Duties

Employers are required by law to comply with several key statutes that set out their obligations:

  1. Health and Safety at Work Act 1974 (HSWA): This Act imposes a general duty on employers to ensure, as far as reasonably practicable, the health, safety, and welfare of their employees at work.

  2. Management of Health and Safety at Work Regulations 1999: These regulations require employers to carry out risk assessments and implement suitable measures to manage those risks.

  3. Employers' Liability (Compulsory Insurance) Act 1969: This Act mandates that employers hold insurance to cover potential claims for injuries or illnesses suffered by their employees as a result of their employment.

These statutory duties set clear benchmarks that employers must follow to protect their employees and comply with the law.

Common Law Duties

Beyond statutory obligations, employers also have duties under common law, established through court decisions over time. These duties include:

  1. Providing a Safe Workplace: Employers must ensure that the work environment is safe for employees.

  2. Supplying Safe Equipment: Employers are responsible for providing equipment that is safe to use and appropriate for the tasks at hand.

  3. Establishing a Safe System of Work: Employers must organize work processes in a way that minimizes risks to employees.

  4. Employing Competent Staff: Employers should hire capable employees and provide adequate training and supervision.

These common law duties are flexible and change to suit different workplace situations, ensuring that employers take reasonable steps to prevent harm to their employees.

Example: Consider an office employee who develops repetitive strain injury because their employer did not provide ergonomic equipment or training on proper workstation setup. In this case, the employer may have breached their common law duty to provide a safe workplace and a safe system of work.

Non-Delegable Duties and Vicarious Liability

Some duties of an employer cannot be delegated to others. This means that even if an employer hires a contractor or outsources tasks, they remain responsible for ensuring those duties are fulfilled. This principle was established in Wilsons and Clyde Coal Co Ltd v English [1938] AC 57, where the court held that employers cannot escape liability by delegating their duties.

In addition, employers can be held vicariously liable for wrongful acts committed by their employees during the course of their employment. If an employee acts negligently or wrongfully while performing their job, the employer may be responsible. The case of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 demonstrated this principle, where the employer was held liable for an assault committed by an employee on a customer.

Example: If a delivery driver employed by a company causes an accident due to negligent driving while making deliveries, the company may be vicariously liable for any damages resulting from the accident.

Establishing a Claim for Employer Liability

To succeed in a claim against an employer for liability, certain elements must be proven:

  1. Duty of Care: The employer owed a legal duty of care to the employee.

  2. Breach of Duty: The employer failed to meet the required standard of care.

  3. Causation: The breach of duty caused the employee's injury or harm.

  4. Foreseeability: It was reasonably foreseeable that the breach could cause harm.

  5. Damages: The employee suffered actual harm or loss as a result.

Example: Picture a construction company that does not provide safety helmets to workers on a building site. If an employee is injured by falling debris due to the lack of protective equipment, the employer may be liable because:

  • There was a duty of care to provide safety equipment.

  • The duty was breached by not providing helmets.

  • The breach caused the injury.

  • It was foreseeable that not providing helmets could result in head injuries.

  • The employee suffered actual harm.

Recent Developments in Employer Liability

The scope of employer liability has expanded to include areas such as psychological injuries and workplace stress. In Walker v Northumberland County Council [1995] 1 All ER 737, the court recognized that an employer could be liable for psychiatric harm resulting from work-related stress if it was reasonably foreseeable.

Subsequent cases have built upon this principle:

  • Hatton v Sutherland [2002] EWCA Civ 76: Established guidelines for when employers may be liable for stress-related illnesses, emphasizing the importance of foreseeability and an employee's particular vulnerabilities.

  • Barber v Somerset County Council [2004] UKHL 13: The House of Lords reaffirmed that employers must take reasonable steps to prevent harm to employees from work-related stress.

These cases highlight the increasing recognition of mental health as a significant aspect of workplace safety.

Example: If an employee reports excessive workload and stress to their manager, and the employer fails to take any action, leading to the employee suffering from a stress-related illness, the employer may be liable for the harm caused.

Liability in Remote Work and the Gig Economy

With more employees working remotely and the growth of the gig economy, new challenges arise in determining employer liability. Key considerations include:

  • Remote Workers: Employers still have a duty of care towards employees working from home, such as ensuring they have a safe work environment. For example, employers may need to provide guidance on setting up an ergonomic home office to prevent injuries.

  • Gig Workers: Determining whether gig workers are employees or independent contractors affects liability. Courts may look at the reality of the working relationship to decide if the company owes duties to the worker.

Example: If a remote employee develops back problems due to an unsuitable home office setup, and the employer failed to provide any support or guidance, the employer may be partially liable for not fulfilling their duty of care.

Conclusion

The interplay between non-delegable duties and vicarious liability forms the core of employer liability claims. Employers cannot escape their fundamental responsibilities by delegating tasks; they remain ultimately accountable for ensuring the safety and well-being of their employees, as established in Wilsons and Clyde Coal Co Ltd v English [1938] AC 57. Simultaneously, through vicarious liability, employers may be held responsible for wrongful acts committed by employees during the course of employment, as demonstrated in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.

These principles operate together, particularly in complex scenarios where an employee's actions and the employer's policies contribute to harm. For instance, if an employer fails to provide adequate training—a breach of their non-delegable duty—and an employee's negligent actions cause injury to a co-worker, the employer may be liable both for their own breach and vicariously for the employee's actions.

Understanding how statutory duties, common law obligations, and these principles interrelate is essential. Employers must comply with specific requirements: providing safe work environments, supplying proper equipment, implementing safe systems of work, and employing competent staff. They must also stay informed about changing legal interpretations, especially in light of modern work arrangements like remote employment and the gig economy.

By meeting these precise legal obligations and taking precautions to manage risks, employers can fulfill their duties and minimize liability exposure under both statutory and common law.

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Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal