Employers
Duty of Care
Recent developments in employment law have demonstrated
the importance in complying with the increasing number of
obligations imposed on employers.
The case of Thomas McMahon v Irish Biscuits and Powers Supermarkets
trading as Quinnsworth (High Court, 2002) held that his
employers were required to take all reasonable steps in
minimising the risk of exposure to injury in the course
of his employment. This duty was held to extend to monitoring
the facilities its employees use while on its customer's
premises and ensuring that such premises provide a safe
working environment. The company was held liable and the
Plaintiff was awarded €535,291.47 in damages.
The judgement reflects the obligation imposed under the
common law duty of care and the Safety Health and Welfare
at Work Act 1989 (the Act). Employers will only be held
to have properly discharged their duty of care if they have
done all that a reasonable and prudent employer would have
done in the circumstances.
There is a legal obligation under Section 12 of the Act
on employers to prepare a Safety Statement. Bearing in mind
the above-mentioned case and its wide interpretation of
"the workplace", employers should, when preparing
the Safety Statement, assess and monitor all potential risks
in the workplace. This Statement should document how the
employer proposes to secure aspects of safety, health and
welfare in accordance with the duties imposed under Section
6 of the Act. The Statement should then be brought to the
attention of its employees or any other person that may
be effected by the Safety Statement.
While an employer's failure to comply with Section 12 is
a criminal offence, this does not automatically impose civil
liability on an employer for loss or damage, if the risk
in question was a risk that would not have been averted
to in the Safety Statement, had it been prepared.
The policy set out in the Safety Statement, in establishing
and maintaining a safe place of work, should be monitored
and adjusted according to developments and feedback. The
policy's effectiveness should then be evaluated on an annual
basis and reported in the Companies Annual Report.
Increased awareness with regard to health and safety has
led to the introduction in 2001 of new regulations for the
Construction Industry in the form of a Safety Health and
Welfare at Work (Construction) Regulations 2001. These regulations
affecting construction sites and building projects came
into force in January 2002 although certain requirements
will not take effect until the 1st of June 2003.
Managers should also be aware that they may be held liable
for personal injury caused to an employee. In Shinkwin v
Quin-Con Ltd & Quinlan (2001), an employee successfully
sued his employers and the company's manager, (who was the
majority shareholder), for negligence. The company was held
negligent for failing to provide proper training and instruction
for the use of machinery and the manager was also held to
be jointly and severally liable, as he had authorised and
instructed the plaintiff to use the machine.
Such developments and increasing statutory obligations in
this area should prompt employers and management to ensure
that they are complying with all their obligations and safeguard
their own exposure, while providing for the safety, health
and welfare of their employees.
Conclusion:
Employers should adopt a proactive approach along the following
lines:
- Prepare
a Safety Statement.
-
Highlight awareness of safety, health and welfare in conjunction
with the Safety Statement.
-
Update & review the effectiveness of the Safety Statement.
-
Include an evaluation of the Safety Statement in the Company's
Annual Report.
For
further information or general enquiries please contact:
Tom Simpson,
E-mail: tsimpson@kilroys.ie
or
Angela Murray,
E-mail: amurray@kilroys.ie
Telephone: +353-1-4395600
Fax: +353-1-4395601/4395602
© Kilroys Solicitors 2002
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