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NEW
DANGER OF CIVIL ACTION FOR EMPLOYERS WITHOUT RISK ASSESSMENTS
The restriction on civil liability
for breaching the Management of Health & Safety at Work
Regulations 1999, and the Fire Precautions (Workplace) Regulations
1997 has now been removed. This means that employees are now able to sue their employer
for breaches of these Health & Safety Regulations.
In
order for a civil claim to be successful, the employee would have to prove three
things:
- A duty of care was owed
to the employee by the employer
(under specific regulations)
- The duty was breached
- The breached duty
resulted in a loss or damage to the employee's health
Although
an employer may only be sued by an employee, it should be made clear
that although a contractor may not be considered as an employee for
tax and national insurance purposes, he may well be considered as an
employee for health & safety purposes, particularly if he is
under the control and direction of the employer.
Therefore a self employed person may be able to sue an
employer in the civil court under this amendment.
One
area where this is likely to have a noticeable impact is in
work-related stress. As
there is no specific regulation relating to work-related stress, the
wide-sweeping Management of Health & Safety at Work Regulations
1999 (MHSWR) will be likely to be cited, which
amongst other things call for risk assessments to be carried out by
a competent person, in order to identify hazards in the workplace,
evaluate the severity of the hazard, and make recommendations to
control that hazard.
Therefore,
employers who are failing to hold conforming, up-to-date
risk assessments will find
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themselves more at risk than ever
before. Returning to
the example of work-related stress, if an employee developed a
stress-related illness, and they decided to sue their employer under
the MHSWR, the following would need to be the case for a successful
claim:
- The employer had a duty
to carry out a Stress Risk Assessment
- This would be apparent
depending on the work environment and if the employer had been
made aware of any specific stress-related problems
- A Stress Risk Assessment
was not carried out
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The employees illness
can be linked to work-related stress
The
following basic risk assessments are required in an office
environment:
The absence of any
one of these risk assessments WILL result in the employer
being in breach of the MHSWR, and therefore now vulnerable to
civil prosecution.
So...what’s
the big deal about civil prosecution?
Well...
whereas with criminal law the burden of proof needs to be “beyond
reasonable doubt”, with civil law the burden of proof is based on
“balance of probability”, which is a lot easier to prove.
Furthermore, there is no upper limit on the amount of money
that can be awarded under a civil claim.
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Here’s
a scenario...
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An
employer perceives that the office they occupy is relatively
“low hazard”, so they decide not to carry out risk assessments.
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An
employee trips over a trailing cable in the office and fractures
his ankle.
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He
decides to sue his employer for failing to carry out a general
risk assessment, as required under the MHSWR.
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It
is clear that the employer owed a duty of care to the employee.
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It
is clear that the employer was in breach of its duty of care, by
way of not carrying out a general risk assessment.
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Based
on the “balance of probability”, it is likely that the
employees injury was as a result of the employers breach of
duty.
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That is to say that if a general risk assessment
had been carried out, it would have identified the trailing cable
as a hazard, and a control measure would have been implemented to
reduce the likelihood of such an accident occurring.
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Final
twist in the tail
Although
most duties under the MHSWR are placed on the employer,
there are also a few which are placed on the employee. For
example, the duty to use equipment in accordance with any training
received.
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What
this means is that the employer is now able to sue the employee
for breaching their duty under the MHSWR. For example,
if an employee caused damage to a machine by not using it in
accordance with training received, then the employer could sue the
employee for damages! |
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UK
STAFF UNAWARE OF HEALTH & SAFETY PRACTICES
UK workers are poorly
prepared for office emergencies and may be putting their health at
risk in the workplace by failing to adhere to basic health and
safety practices.
Recent research reveals that
more than one in 10 attempt to use machinery without adequate
knowledge, 15% use machinery without reading the operating manual,
and 7% obstruct emergency exits. A further 37% admit they are
guilty of causing obstructions, such as leaving boxes on the office
floor.
The research also
shows that many would be ill prepared if an emergency were to happen
at work. Less than half are aware of their company's emergency
procedures and nearly a third admit they would not know what to do
if a colleague or visitor had an accident on the premises. |
A further 12% don't
know where the fire exits are in their building, and a third cannot
pinpoint the location of their fire extinguishers.
Other highlights from
the research includes:
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Nearly one in
five people have been involved in a workplace incident
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Men are more
likely to be accident-prone than their female colleagues, with
24% admitting to being involved in a mishap at work, compared
with just 16% of women
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Almost half the
workers surveyed believe the biggest potential health risks are
back problems, followed closely by eye strain
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Most people
believe the biggest impact on the company they work for is staff
absence due to a work-related injury
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WINTER
& COMPANY HEALTH & SAFETY TRAINING COURSES
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Training
courses are provided on these topics:-
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For
your convenience training sessions are delivered at client's on-site
locations, or at our home training venue at the Law Society, London.
For
further information or to book a training course, email us at training@health-safety.net
or call Eve Horgan Free on 0800 169 1554
For
information on health & safety matters in your office, including
“questions & answers”, see our web site at
www.health-safety.net.
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