Employers' primary liability - Remaining elements of an empl...

Learning Outcomes

This article explains employers’ primary liability and the remaining elements of an employer’s liability claim, including:

• The fourfold common law duty and its personal, non-delegable nature, and how each limb (competent staff, safe plant, safe system, safe workplace) can found liability
• The standard of care of the reasonable employer, including how courts assess foreseeability of risk, magnitude of potential harm, cost and practicability of precautions, enforcement of safety systems, and limited relevance of social utility
• The evidential role of health and safety regulations post-ERRA 2013, the continuing effect of the Employer’s Liability (Defective Equipment) Act 1969, and how statutory standards shape the content of the common law duty
• Causation via the but-for test, material contribution and material increase in risk, treatment of multiple tortfeasors, novus actus interveniens, and remoteness based on reasonable foreseeability and the eggshell skull rule
• Foreseeability of psychiatric harm from workplace stress, the Hatton v Sutherland guidelines (as affirmed in Barber), reasonable managerial responses, and the distinction between stress-at-work claims and secondary victim cases
• Application of these principles to typical SQE1-style problem questions, with a focus on precise issue-spotting, structured analysis of breach, causation and remoteness, and accurate deployment of statutory and case-law authorities in exam answers

SQE1 Syllabus

For SQE1, you are required to understand employers’ primary liability and the remaining elements of an employer’s liability claim, with a focus on the following syllabus points:

• 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
• the role of the Employer’s Liability (Defective Equipment) Act 1969 in civil claims

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 core common law duties owed by an employer to employees?
2. What must a claimant prove to establish breach of duty in an employer’s liability claim?
3. How does the law determine whether an employer’s breach caused the employee’s injury?
4. Can an employer avoid liability by delegating safety responsibilities to a contractor?
5. 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.

Competent staff requires reasonable selection, training, supervision and intervention where an individual’s conduct poses a foreseeable risk to colleagues. Adequate plant and equipment includes providing suitable tools, machinery, guards and PPE and keeping them in proper order. A safe system of work concerns the way work is organised—instructions, sequencing, coordination, communication, and enforcement. A safe workplace concerns the condition and layout of premises under the employer’s control and, crucially, extends to third-party sites where employees work; the employer must assess and address site-specific dangers and adjust systems accordingly. Because the duty is non-delegable, employers cannot avoid responsibility by relying on the practices of other organisations or independent contractors.

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 standard incorporates familiar negligence factors:

• Foreseeability and likelihood of harm: an employer must take care to guard against reasonable probabilities, not remote possibilities. Repeated near-misses, prior incidents, complaints or risk assessments can make a danger clearly foreseeable.
• Magnitude of potential harm: the more serious the potential injury, the greater the precautions expected. Where consequences could be catastrophic (e.g. work at height, chemical exposure), modest risks demand robust measures.
• Cost and practicability of precautions: reasonably practicable steps should be taken; cost is relevant but rarely decisive where the risk is significant. Stopping work may be reasonable where other precautions cannot adequately reduce the risk.
• Social utility: limited relevance in workplace safety; it does not reduce the duty to organise work safely or enforce systems.

In the employment context, breach often turns on whether the employer took reasonable steps after the risk became apparent. A credible system that is not enforced is inadequate; a paper policy without training, supervision and discipline is unlikely to meet the standard. Common practice in the industry is relevant but not conclusive; a widespread unsafe practice is still negligent.

The duty is personal and non-delegable. It cannot be avoided by delegating safety tasks to others. A principal who sends staff to third-party premises must identify foreseeable hazards and devise and enforce a safe system addressing those hazards (for example, revised methods, buddying, equipment, training, and checks).

Evidentially, where the accident is of a kind that ordinarily does not occur without carelessness and the causative instrumentality was under the employer’s control (e.g. workplace machinery), the claimant may, in appropriate cases, rely on inference to shift the evidential burden, though the court will still weigh all the circumstances.

Statutory duties and their effect

Employers must also comply with statutory duties, such as those under the Health and Safety at Work etc. Act 1974 and subordinate regulations (e.g. duties to assess risks, provide information, training and PPE). Breach of such regulations may be powerful evidence of negligence. However, following the Enterprise and Regulatory Reform Act 2013, most health and safety regulations no longer give rise to a freestanding civil claim unless the regulation expressly provides one. The practical effect is that claimants plead common law negligence and use breach of statutory standards to demonstrate what reasonable care required in the circumstances.

Key Term: statutory duty
An obligation imposed on employers by legislation, such as health and safety regulations.

One statutory route to civil liability remains central in the workplace:

Key Term: Employer’s Liability (Defective Equipment) Act 1969
A statute that makes employers liable for injury caused by defects in equipment provided for their business, where the defect is due wholly or partly to the fault of a third party. It attributes the third party’s fault to the employer to ensure employees are protected.

The Employer’s Liability (Defective Equipment) Act 1969 applies where an employee is injured by defective equipment provided by the employer for the purposes of the business and the defect is due to a third party’s fault (for example, a manufacturing defect). Liability is attributed to the employer even if the employer exercised reasonable care in sourcing and inspecting the equipment. “Equipment” is construed broadly and can include items such as machinery, vehicles, components and even materials supplied for use.

Post-ERRA, health and safety regulations (e.g. Management of Health and Safety at Work Regulations 1999, Workplace (Health, Safety and Welfare) Regulations 1992, Provision and Use of Work Equipment Regulations 1998, Personal Protective Equipment at Work Regulations 1992) are not generally actionable in their own right. Their content remains highly relevant to the standard of reasonable care, particularly on risk assessment, training, information and supervision.

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: material contribution
A principle allowing causation to be satisfied where the defendant’s breach was a more than trivial cause of the indivisible injury, even if other causal factors were also present.

In workplace cases, causation frequently requires careful analysis:

• But-for causation: did the injury occur because the employer failed to take reasonable care? If goggles would have prevented the eye injury, a failure to provide or enforce them will satisfy causation. If medication or rescue efforts would not have changed the outcome, lack of such steps may not be causative.
• Material contribution: where the injury is indivisible (e.g. pneumoconiosis from cumulative dust exposures), a breach that materially contributed to the exposure can satisfy causation even if precise apportionment among multiple sources is impossible.
• Material increase in risk: in certain contexts (especially where the science cannot distinguish which exposure triggered the injury), showing that the breach materially increased the risk of the injury may suffice; courts apply this cautiously, but it features in industrial disease claims.
• Multiple tortfeasors: where more than one defendant has materially contributed to the same indivisible injury, each is liable in full to the claimant; apportionment occurs between defendants under contribution rules.
• Novus actus interveniens: negligent medical treatment following an accident will rarely break the chain; truly gross or wholly inappropriate treatment may do so, but ordinary negligence in treatment is foreseeable.
• Eggshell skull: vulnerability does not help the defendant; if the type of injury was foreseeable, the full extent of harm is recoverable.

Key Term: remoteness
The principle that limits recovery to losses that are a reasonably foreseeable consequence of the breach.

Remoteness requires that the kind of harm be reasonably foreseeable. Exact mechanisms rarely need to be predicted; if injury by, say, burning is foreseeable, the claimant may recover for burns even if an unusual sequence (e.g. a lamp exploding) produced the burn. Financial losses arising solely from economic arrangements (e.g. exceptional profits lost because the injured employee missed a unique sales opportunity) are generally too remote unless tied to a foreseeable physical injury.

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. The guidelines were approved by the House of Lords in Barber v Somerset County Council and have been applied in later cases such as Hartman v South Essex Mental Health NHS Trust.

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.

Foreseeability is the “threshold question”. It is generally assessed by reference to:

• The nature and extent of the work: a manifestly excessive workload, persistently long hours, constant exposure to distressing material, repeated emergency demands, or chronic understaffing can make harm foreseeable.
• Signs from the individual employee: the employer is entitled to assume employees can withstand the normal pressures of the job, but explicit indicators (complaints of depression or anxiety, requests for time off, prior sickness absence for stress, medical notes, performance issues linked to overload) can make harm reasonably foreseeable.

Where psychiatric harm is foreseeable, the duty is to take reasonable steps to alleviate or prevent it. Reasonable steps vary with context but can include adjusting workloads and deadlines, redistributing tasks, providing additional staff or supervision, offering confidential counselling or referral to occupational health, varying duties temporarily, ensuring breaks, and monitoring progress. If an employee has suffered a stress-related breakdown and returns to work, the need for precautionary steps is obvious; a failure to intervene in those circumstances is likely to be negligent.

Important clarifications:

• No “sudden shock” requirement applies to work-stress claims: they concern cumulative stress rather than immediate traumatic events.
• The Alcock control mechanisms for secondary victims do not apply: they are irrelevant to employer/employee stress claims, which turn on foreseeability and reasonable response.
• Personal vulnerability may be relevant only insofar as the employer knew or ought to have known; the duty remains one of reasonable care, not absolute protection.
• Remedial steps must be more than token; a promise to help that is never implemented is unlikely to satisfy the duty.

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.

Worked Example 1.3

Scenario: A machinist suffers hand injuries when a newly supplied guarding component fails under normal use. The employer bought the component from a reputable manufacturer and had no reason to suspect a defect.

Answer:
The Employer’s Liability (Defective Equipment) Act 1969 likely renders the employer liable. The item is “equipment” provided for the purposes of the business, and if the defect is due to the manufacturer’s fault, that fault is attributed to the employer. The employer’s care in sourcing and inspection does not defeat liability under the Act.

Worked Example 1.4

Scenario: A foundry worker develops pneumoconiosis after years in dusty conditions. Some dust exposure was inevitable; other exposure should have been extracted under a proper system that was not maintained.

Answer:
Causation can be satisfied on material contribution. If the negligent failure to extract respirable dust made more than a trivial contribution to the indivisible disease, the employer is liable, even if precise apportionment among sources of dust cannot be proved.

Worked Example 1.5

Scenario: A social worker returns from a three-month stress-related absence. Within weeks, their caseload is restored to pre-absence levels without additional support. They suffer a second breakdown.

Answer:
Psychiatric harm was plainly foreseeable. A reasonable employer would have taken concrete steps to reduce workload and provide support. The failure to intervene after the first breakdown is likely negligent under Hatton and Barber.

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. Distinguish this from the Employer’s Liability (Defective Equipment) Act 1969, which continues to impose civil liability where its conditions are met.

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, considering foreseeability, magnitude of harm, cost/practicability of precautions and enforcement of systems
• Statutory health and safety regulations largely do not create freestanding civil claims post-ERRA 2013; breach is highly relevant evidence of negligence
• The Employer’s Liability (Defective Equipment) Act 1969 continues to attribute third-party equipment defects to employers, ensuring civil recovery
• Causation generally uses the but-for test; material contribution and, in appropriate contexts, material increase in risk can satisfy causation where science cannot separate sources of indivisible harm
• Remoteness requires reasonable foreseeability of the kind of harm; the eggshell skull principle applies to extent of damage
• Employers may be liable for workplace stress if psychiatric harm is reasonably foreseeable and reasonable steps are not taken; Hatton’s guidelines (approved in Barber) frame foreseeability and response
• The Alcock control mechanisms do not apply to stress-at-work claims; no sudden shock requirement exists in this context

Key Terms and Concepts

• employer’s primary liability
• non-delegable duty
• breach of duty
• statutory duty
• Employer’s Liability (Defective Equipment) Act 1969
• causation
• material contribution
• remoteness
• workplace stress claim