Learning Outcomes
After reading this article, you will be able to identify and apply the remaining elements required to establish an employer’s primary liability in tort. You will understand how breach of duty, causation, statutory duties, and modern developments such as workplace stress claims are assessed for SQE1. You will also be able to distinguish between primary liability and vicarious liability, and recognise the practical implications for exam scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the remaining elements of an employer’s liability claim beyond the existence of a duty. In your revision, focus on:
- the requirements for breach of duty by an employer, including the standard of care
- how causation and remoteness are established in employer liability claims
- the impact of statutory duties (e.g. health and safety regulations) on employer liability
- the principles governing claims for workplace stress and psychiatric harm
- the distinction between primary liability and vicarious liability
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.
- What are the four core common law duties owed by an employer to employees?
- What must a claimant prove to establish breach of duty in an employer’s liability claim?
- How does the law determine whether an employer’s breach caused the employee’s injury?
- Can an employer avoid liability by delegating safety responsibilities to a contractor?
- What is the significance of the Hatton v Sutherland guidelines for workplace stress claims?
Introduction
Employer liability in tort is not limited to simply owing a duty of care. To succeed in a claim, an employee must also prove that the employer breached that duty, that the breach caused the injury, and that the loss is not too remote. This article sets out the remaining elements of an employer’s primary liability claim, including breach, causation, statutory duties, and modern developments such as workplace stress.
Common law duties: the fourfold obligation
At common law, an employer owes employees a personal, non-delegable duty to take reasonable care for their safety. This duty is traditionally divided into four main obligations:
Key Term: employer’s primary liability The direct, personal duty owed by an employer to employees to take reasonable care for their safety at work. This is distinct from vicarious liability, which is secondary liability for employees’ torts.
Key Term: non-delegable duty A duty that cannot be discharged by appointing others to perform it. The employer remains liable even if safety tasks are delegated to contractors or staff.
- To provide competent staff
- To provide adequate plant and equipment
- To provide a safe system of work
- To provide a safe workplace
Each of these is a separate obligation. A breach of any one may give rise to liability.
Breach of duty
To establish breach, the employee must show that the employer failed to reach the standard of a reasonable employer in the circumstances. The court considers what risks were foreseeable, the seriousness of potential harm, and the cost and practicality of precautions.
Key Term: breach of duty A failure by the employer to meet the standard of care required by law, judged by what a reasonable employer would do in the circumstances.
The employer’s duty is personal and non-delegable. It cannot be avoided by delegating safety tasks to others.
Statutory duties and their effect
Employers must also comply with statutory duties, such as those under the Health and Safety at Work Act 1974 and related regulations. Breach of statutory duty may be evidence of negligence, but after the Enterprise and Regulatory Reform Act 2013, most health and safety regulations do not give rise to a separate civil claim unless expressly stated.
Key Term: statutory duty An obligation imposed on employers by legislation, such as health and safety regulations.
Causation and remoteness
The employee must prove that the employer’s breach caused the injury or loss, using the standard “but for” test. If there are multiple possible causes, the court asks whether the breach materially contributed to the harm.
Key Term: causation The requirement that the employer’s breach of duty actually caused the employee’s injury or loss.
Key Term: remoteness The principle that limits recovery to losses that are a reasonably foreseeable consequence of the breach.
Stress and psychiatric harm at work
Employers may be liable for psychiatric harm caused by workplace stress if injury is reasonably foreseeable. The Hatton v Sutherland guidelines clarify when liability arises, focusing on foreseeability, the nature of the work, and what the employer knew or ought to have known.
Key Term: workplace stress claim A claim by an employee for psychiatric injury caused by work-related stress, subject to special rules on foreseeability and reasonable steps.
Worked Example 1.1
Scenario: An employee in a warehouse is injured when a heavy box falls from a defective shelf. The employer had delegated all safety checks to an external contractor.
Answer: The employer is likely to be liable. The duty to provide safe equipment and a safe system of work is non-delegable. Delegating checks to a contractor does not remove the employer’s liability if reasonable care was not taken.
Worked Example 1.2
Scenario: An office worker develops depression after months of excessive workload. The employer was aware of the employee’s complaints but took no action.
Answer: The employer may be liable for psychiatric harm. Under the Hatton v Sutherland guidelines, if injury from stress was reasonably foreseeable and the employer failed to take reasonable steps, liability can arise.
Exam Warning
For SQE1, remember that breach of statutory duty is no longer a separate civil claim for most health and safety regulations unless the regulation expressly allows it. However, breach may still be evidence of negligence.
Key Point Checklist
This article has covered the following key knowledge points:
- The four core common law duties owed by employers: competent staff, safe equipment, safe system, safe workplace
- The employer’s duty is personal and non-delegable; delegation does not remove liability
- Breach of duty is judged by the standard of a reasonable employer in the circumstances
- Statutory duties supplement the common law but rarely give rise to separate civil claims
- The employee must prove breach, causation, and that loss is not too remote
- Employers may be liable for workplace stress if psychiatric harm is reasonably foreseeable and reasonable steps are not taken
Key Terms and Concepts
- employer’s primary liability
- non-delegable duty
- breach of duty
- statutory duty
- causation
- remoteness
- workplace stress claim
