Employers Obligations for Employee Health and Safety

Employers Obligations for Employee wellness and base hitTo what extent is the employer obliged to exercise c ar for the health and safety of the employee while performing his or her duties? Is the current position in this regard satis featureory?IntroductionThe obligations of the employer for health and safety come undergone an interesting victimization on both the commons law and statutory sides of legal regulation. This paper will examine the current extent of obligations for employers towards the health and safety of their employees while they atomic number 18 carrying out their work duties. This current position will then be analysed in order to determine whether it is satisfactory.A. Current Health and guard duty Obligations of the employer to the employee1.The Common lawThe common law occupation of c ar1 translates into an implied term of the contract and in the case of Wilsons and Clyde Coal Co v English2 the House of Lords identified three key areas in which this imp lied duty lies(a)Competent StaffAn employer will be liable if they do non provide their employees with sufficient training. This occurred in Hawkins v Ross Castings Ltd3 where an employee sustained an injury as a result of a spillage of molten metal at the fault of a seventeen year old colleague who possessed only a rudimentary criterion of English. Another facet to the heading of competent staff is the actual behaviour of the employees whereby, acts of mischief or larking around can be of a particular danger as occurred in Hudson v Ridge Manufacturing Co Ltd.4(b) Safe Plant and EquipmentAn employer is obliged to provide safe equipment and this even applies where in that location was no knowledge of there being a fault. This is a departure from the traditional common law perspective but is not a new rate as it into effect with the passing of the Employers Liability (Defective Equipment) go of 1969. Here all faults in equipment to be attributable to the employer where a third p arty has been neglectful and in order to meet the financial needs of this obligation, insurance is obligatory for much(prenominal) actions in accordance with the Employers Liability (Compulsory Insurance) Act 1969. In the interests of fairness, the employer and/or the insurance company can then sue the manufacturer.(c) Safe System of giveThis obligation is twofold whereby the employer must, firstly, tell the employees of the location of safety equipment5 and secondly, the employer has the right to read that the employee possesses a degree of common sense with the result that there is no obligation to warn of dangers that are explicit such as the hitting of an outstanding bomb with a hammer6 or running in the corridor to obtain lunch.7 This highlights the fact that the employer must find a balance between the obvious and the not so obvious safety measures where there would be an obligation to inform the employee of perils and the proper procedures. Employees may make a decisio n not to ram certain precautions, but if the risk is obvious, their employer will not be liable8, however despite any conscious choice on the part of the employee, a risk that is not obvious will always rest with the employer9. This standardized is ideal as it rightly presupposes the authority of the employer and their superior knowledge but at the same time, also acknowledges private autonomy of employees for which the employer should not be held liable.A further and more novel application of the safe system of work is that the employer must refrain from requiring that the employee work excessively long hours10 and cause unnecessary levels of stress11 that a splay on account of insufficient staffing and the even more serious occurrence of bullying in the work get.12 This gave rise to an innovation in indebtedness for the psychological injury that employees could sustain and in this era of greater pressure in the work place, it would capture been a distant more applicable he ad of claim to a greater number of employees than that of the traditional doctrine of liability for physical injury alone. However two recent cases on this matter gave rise first of all, limitation and then outright exclusion of heads of claim concerning stress in the work place. The earlier limitation arose in Sutherland v Hatton13 in which it was held by the Court of Appeal that there had to be plain indications of impending harm that would arise from the stress. This is part of a traditional borrowing that there has to be a balance between the likelihood of the injury occurring and the approach to the employer of protecting his employees.14 In the latter case of Barber (Appellant) v. Somerset County Council (Respondents)15 heterogeneous a teacher suffering from stress and the House of Lords rejected the notion of an employers duty of care. Lord Scott of Foscote stated thatThe school is entitled to expect, also, that the teacher, an adult, will puzzle his own decisions as to w hether he needs to consult his reanimate and will, if so advised by his doctor, take time off16(d) Safe Place of WorkSince the decision of the Wilsons and Clyde Coal Co case, there is a fourth area to which the applied duty of care is attributable and this is the provision of a safe place of work. There are three key areas where the employer must exercise a reasonable standard of care. This constituted the obligation to provide an adequate reporting system.17 more(prenominal) recently, this has the potential to extend to instances of long term injury such as passive smoking as it was established that employees have a right not to work in a smoky environment in Waltons and Morse v Dorrington18 and this would constitute a step in the right direction. A head teacher now arises as to how farther this duty ought to extend.2.Statutory DutiesThe Health and Safety at Work Act 1974 is the key legislative authority for the obligations of employers to their employees and its aim is twofold .1. The provision of a general duty of careIn the first place the 1974 Act sets out the general duties that are applicable to the entire employment spectrum and this standard is open in s 2(1) of the 1974 Act, which is as followsIt shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees.Further to this there are also more specific obligations laid throughout s 2 of the Act, which encompass the provision and maintenance of plant and systems of work so that they are safe and without risk to health.19 There is also provision on, the handling, storage and transport of articles and substances20 as well as, provision of information, instructions, training and supervision.21 Finally s 2 of the 1974 Act also has provision onThe maintenance of places of work under the employers control in a safe check into with safe and risk free means of access and egress.22andThe provision and maintenance of a safe, risk-free working environment with adequate welfare facilities and arrangements.23The crucial element of these provisions is that the standard of care stipulated is for the employer to act is, as far as is reasonably practicable. This standard carries with it the obligation for employers to do everything reasonable that would ensure safety and the provisions go far to show that this encompasses many fields such as training, inspections and the availability of safety equipment. The emphasis of the Robens Report was therefore largely met with there being a statutory framework that requires employers to actively think about the measures they are taking.2. Provision of a unified system of enforcement by the Health and Safety Executive and the various topical anesthetic authorities.The second aim of the 1974 Act is as a system of enforcement and this is largely carried out by the Health and Safety inspectorate but paradoxically, no one can, in accordance with s 47 of the 1974 Act, raise a civil action under the duties imposed by the 1974 Act. While this results in a fundamental unbelieving of the usefulness of the 1974 Act, it does highlight the fact that this legislation is exclusively an Act for professional enforceability. The rights of recourse for employees are therefore in accordance with the standard duties of care that are found under the law of tort.24 More specifically, actions can be raised in relation to industrial accidents, personal injury, injuries arising out of the course of employment and somewhat statutory obligations. However, it is the Act itself that specifics the standard of care to be adopted by employers when their employees are carrying out their employment duties. In addition, the 1974 Act creates a premise for felon liability, which of course carries higher penalties as well as an employers burden of proof, as opposed to the burden of the plaintiff in civil actions.2. Interpretation of the standard of care of the 1974 Act in case lawInterpret ation of the standard under case law is essentially analysis of the way in which the courts have dealt with the crucial phrase, so far as is reasonably practicable. Case law shows that the reasonable practicability of a given situation can cover areas such as financial viability of the health and safety measure as against the risk of injury. This is similar to the balance that requires to be sought under the common law, with the equivalent 1974 Act case being that of Associated Diaries v Hartley.25 Here an employee sustained an injury as a result of a truck going over his foot. The safety clothe would have cost him 1 per week but decided not to use them and his argument that they should have been provided for free failed on account of the fact that they would have cost the employer 20,000.This balance is perfectly sound but the 1974 Act is not equipped to deal with instances of stress at work on account of the fact that civil actions cannot be raised via its provisions.B. Is this p osition satisfactory?1. Possible faults with the common lawIt is extremely disappointing that the House of Lords has rejected the concept of a duty of care for stress as there is a great deal that employers can do to relieve stress levels and, as with the balance that has been achieved between the cost of health and safety and the likelihood of injury, the equivalent would be more than approachable for stress situations. This does not bode well for other types of innovations such asThe common law does however acknowledge that a duty of care also extends beyond the work place where the employee continues to act within their duties of employment. This is contriven in the case of power v Smith and Another26 where, in the event of inadequate on-site facilities, it is up to the employer to find a suitable solution.2. Faults with the 1974 ActThe current issue with the current Health and Safety legislation is that it is becoming outdated and is much in need of reform in order to cope wit h new kinds of dangers that were not such a going concern in 1974. This specifically refers to the ever increasing circumstances of stress related injury that would be wholly out-with the competence of the Health and Safety Inspectorate. However as a result of Barber v Somerset County Council, such an argument would not hold strength unless the legislative were to decide to knock over the common law doctrine and create a statutory obligation for employers against employee stress.ConclusionBoth the common law and the statutory framework are evenly satisfactory in terms of their ability to tackle cases of negligence where there has been physical injury caused to the employee on account of the negligence of the employer. However, the express exclusion of liability for stress, as well as the impracticability of the Health and Safety inspectorate to even attempt to assist in safeguarding against stress is a concern of great magnitude. The closure of Lord Foscote in the case of Barber v Somerset County Council was wrong as the question of choosing to be a teacher or a doctor is an overly romanticised image of a pic n mix employees market with readily available jobs. Further to this, it should never become an accepted condition of our society that unhealthy stress should be an integral to working life for which there can be no legal recourse.BibliographyLegislationHealth and Safety at Work Act 1974Case LawDonoghue v Stevenson 1932 AC 562Wilsons and Clyde Coal Co v English 1938 AC 57Hawkins v Ross Castings Ltd 1970 1 All ER 180Hudson v Ridge Manufacturing Co Ltd 1957 2 QB 348Finch v Telegraph Construction Maintenance Co Ltd 1949 1 All ER 452OReilly v National Rail 1966 1 All ER 499Lazarus v Firestone Tyre and Rubber Co Ltd (1963) The Times 2 MayQualcast (Wolverhampton) Ltd v Haynes 1959 AC 743Berry v Stone Maganese Marine Ltd (1971) 12 KIR 13Johnstone v Bloombury Area Health Authority 1991 ICR 269Walker v Northumberland County Council 1995 IRLR 35Ratcliffe v Dorse t County Council 1978 IRLR 191.Waters v Commissioner for the Police of the Metropolis 2000 IRLR 720Sutherland v Hatton 2002 EWCA Civ 76Stokes v Guest, Keen Nettleford (Bolts Nuts) Ltd 1968 1 WLR 1776Barber v Somerset County Council 2004 UKHL 13Franklin v Edmonton lot (1966) 109 SJ 876Waltons and Morse v Dorrington 1997 IRLR 488Associated Diaries v Hartley 1979 IRLR 171King v Smith and Another (1994) The Times 3 November.General Cleaning Contractors v Christmas 1953 AC 180 text edition Book PublicationsD.Brodie, Health and Safety (Oxford University crusade, 2004)H.Collins, K.D.Ewing A.McColgan, Labour LawText and Materials (Oxford Hart Publishing, 2001)Smith and Woods Industrial Law (Butterworths, 8th edn, 2003)R.W.Painter and A.Holmes, Cases and Materials on Employment Law, (Oxford University Press 5th edition, 2004)ArticlesD Brodie Trust and Confidence and Barber v Somerset County Council Some further Questions (224) 33 ILJ 2611Footnotes1 Donoghue v Stevenson 1932 AC 5622 1938 AC 573 1970 1 All ER 1804 1957 2 QB 3485 See Finch v Telegraph Construction Maintenance Co Ltd 1949 1 All ER 4526 OReilly v National Rail 1966 1 All ER 4997 Lazarus v Firestone Tyre and Rubber Co Ltd (1963) The Times 2 May8 See Qualcast (Wolverhampton) Ltd v Haynes 1959 AC 7439 See Berry v Stone Maganese Marine Ltd (1971) 12 KIR 1310 Johnstone v Bloombury Area Health Authority 1991 ICR 26911 Walker v Northumberland County Council 1995 IRLR 3512 See Ratcliffe v Dorset County Council 1978 IRLR 191. See also Waters v Commissioner for the Police of the Metropolis 2000 IRLR 720, which involved tormenting within the police force after the failure to take seriously an allegation of sexual assault.13 2002 EWCA Civ 7614 For an in depth analysis of this balance, see Stokes v Guest, Keen Nettleford (Bolts Nuts) Ltd 1968 1 WLR 1776 per Swanwick J at pp 1779-178315 2004 UKHL 13. For commentary see D Brodie Trust and Confidence and Barber v Somerset County Council Some further Questions (224) 33 ILJ 26116 ibid per Lord Foscote at paragraph 1417 Franklin v Edmonton batch (1966) 109 SJ 87618 1997 IRLR 48819 1974 Act s 2(2)(a)20 1974 Act s 2(2)(b)21 1974 Act s 2(2)(c)22 1974 Act s 2(2)(d)23 1974 Act s 2(2)(e)24 For the birth of the neighbour principle, see Donoghue v Stevenson 1932 AC 562.25 1979 IRLR 17126 (1994) The Times 3 November. This case followed the older case of General Cleaning Contractors v Christmas 1953 AC 180