Duties of Employees I
Health, safety and welfare legislation places personal responsibilities on employees, as well as on employers. Employees in this context include persons who are employees in the strict sense, together with certain other persons such as agency workers, persons receiving training and independent contractors who are under the control and supervision of the employer.
Employees must comply with their statutory obligations. The must take care to ensure that they do not endanger their own health and safety, or that of others. Employees must not engage in improper conduct or behaviour likely to endanger their own others health, safety and welfare and those of others.
An employee shall not, on entering into a contract of employment, misrepresent himself to an employer with regard to the level of training as may be prescribed for the position.
Duties of Employees II
They must cooperate with their employers in the implementation of legal obligations. Thy must attend training as may reasonably be prescribed by the employer or as may be prescribed by law in relation to health, safety and welfare at work relevant to their employment. Employees must submit to appropriate reasonable and proportionate tests where necessary, under the supervision of a medical practitioner.
An employee must not intentionally or recklessly and without reasonable cause, interfere with, misuse or damage anything which is provided for securing legal compliance or securing health, safety and welfare at work.
An employee must not place at risk, the health, safety and welfare of others in connection with work activities. An employee must ensure that they are not under the influence of intoxicants to the extent that they endanger their own health and safety, or that of others.
General Statutory Duties of Employees
Employees have duties to take care in the workplace for their own health, safety and welfare and that of their fellow employees. The health, safety and welfare at work legislation imposes obligations on employees. This includes the duties to
- comply with the relevant statutory provisions;
- take reasonable care for their safety, health and benefit;
- ensure that they are not under the influence of an intoxicant to such extent that they may endanger his own safety, health or welfare of that of another;
- if reasonably required by his employer, submit to appropriate, reasonable and proportionate tests by or under the supervision of a medical practitioner;
- cooperate with their employer in so far as necessary to enable the employer to comply with statutory provisions;
- not engage in improper conduct or other behaviour likely to endanger their or others’ safety;
- attend training as may be reasonably required by the employer or as may be prescribed by law;
- having regard to training and instructions, make correct use of substances or articles provided by the employer for their protection, including protective clothing and equipment;
- report to the employer or another appropriate person as soon as practicable, all work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare of employees or others;
- report to the employer or another appropriate person as soon as practicable, defects in the place of work, systems of work or substances which might endanger the health, safety and welfare of the employee or other;
- report any contravention of the statutory provisions relating to the health, safety and welfare at work;
Duties regarding Workplace Equipment
Employees must make use of articles, substances and equipment correctly as required for the protection of health, safety and welfare. They must use the requisite protective clothing and equipment. They must report the following to the employer
- any dangerous work practices
- work being carried out in a dangerous manner;
- any defect in the place of work or in; systems of work and substances which may endanger health, safety or welfare at work;
- contravention of statutory requirements which may endanger health, safety and welfare at work.
A person may not intentionally, recklessly or without reasonable cause, interfere with, misuse or damage anything provided under health, safety and welfare legislation for securing the safety, health and welfare of persons, or place at risk, the safety, health or welfare of persons in connection with work activities.
Intoxication, Alcohol, and Drugs
An employee must ensure that he is not under the influence of intoxicants to the extent that he may endanger his own health, safety, and welfare or that of another person. An employer has a general duty to take due care for the health and welfare of his employees and the public. Where necessarily required by his employer, an employee must submit to appropriate and proportionate tests for intoxicants, under the control of a registered medical practitioner or a competent person.
When intoxication is a critical issue such as with drivers, machine operators, etc., there should be appropriate procedures for intoxicant monitoring. A substance misuse policy would be appropriate. Zero tolerance is not necessarily appropriate. The approach should be proportionate, and matters should not be dealt with, by a purely disciplinary approach.
An employee may be required submit to tests for intoxication and illicit drugs which are reasonably required by the employer. The European Court of Human Rights has held that programs of testing may be justified where there is an objective basis and where issues of safety and public safety involved. Information must be revealed to third parties, only insofar as strictly necessary.
Human rights considerations require that such tests be limited and proportionate, reasonable, and necessary. They must not involve a disproportionate interference with privacy. They are permissible to the extent that they are strictly necessary. The testing must be undertaken on a non-discriminatory basis. It must be undertaken only where objectively necessary. The programs must be proportionate and reasonable in terms of infringement on privacy.
Employees must cooperate with employers in so far as necessary, so as to enable employers and others to comply with their legal obligations. They must not engage in improper conduct or behaviour that is likely to endanger their own health, safety or welfare or that of another. They must attend such training as may be reasonably required by the employer or as may be prescribed.
Employees must report dangerous incidents and occurrences to the employer or other appropriate person. They must report defects in the place of work, systems of work and article or substances which might endanger the safety, health and welfare of employees and other.
Employers are entitled to notify the HSA of health and safety concerns. Employees must report any contravention of statutory provisions which may endanger health, safety and welfare of an employee or another, of which they are aware. They must not be victimised / penalised for so doing. Non-compliance by itself will not constitute penalisation. There must be a clear link between the action and consequence.
An employee may not be penalised for making a complaint under health, safety and welfare legislation. In addition to general “whistle-blowing”, protected disclosures and anti-penalisation legislation in the employment context, health and safety legislation has its own stand-alone provisions in relation to penalisation. There is a stand-alone appeals mechanism under the health, safety and welfare legislation. A complaint may be made to the Rights Commissioners, now the Workplace Relations Commission.
Penalisation is any detrimental action affecting terms, conditions or the circumstances of employment. The mere failure to comply with statutory duty does not necessarily constitute penalisation in the above sense. There must be a dismissal, a sanction or other adverse detrimental impact on the employee’s terms and conditions of employment, which arises as a consequence of the action.
Penalisation is not permitted in response to actions taken in compliance with statutory provisions, performing a statutory duty, making a complaint or representation to the safety representative, giving evidence in prosecutions, being a safety representative or leaving or refusing to return to a place of work, where there is a serious and imminent danger. A dismissal in circumstances such as these is deemed automatically unfair.
Complaints should be dealt in the first instance under internal disputes and grievance procedure. Employees are entitled to make a complaint in writing to the WRC that there has been penalisation. The adjudication officer considers the complaint and gives both parties an opportunity to be heard, and makes a recommendation. He may find that the complaint is well-founded and require the employer to pay fair compensation.
Employees may be prosecuted for breach of their statutory obligations. Employees have been prosecuted for breach of health, safety and welfare legislation in cases where they have done acts which flagrantly fail to take care of their own safety or the health, safety and welfare of colleagues.
Breach of statutory obligation or workplace safety rules may justify disciplinary action on the part of the employer. Employees who engage in dangerous behaviour may ultimately be subject to dismissal.
If an employee is accused of breach of his duties and obligations, fair procedures must be afforded in accordance with the requisite workplace disciplinary process. The procedures must be duly completed before sanctions are applied. Dismissal in breach of the requirement for fair procedures is likely to constitute unfair dismissal.
The sanction of dismissal must be proportionate. Only extreme breaches or repeated serious breaches would be likely to justify dismissal.
Civil Liability of Employees
In former times, the defence of voluntary assumption of risk was often used against employees. This is the principle that employer would not be liable for civil damages because the employee had consented to the risk. However, in modern times this is severely limited. Generally, the employer will be held liable. A reduction in compensation by reason of contributory negligence is a possibility.
Formerly, employees were often found contributorily negligent and were not able to recover compensation. In modern times, an employee will generally be held to be contributorily liable for where his default is intentional, reckless and significant. In such ases, the compensation is more likely to be reduced on the basis of contributory negligence, than to be wholly denied, where the employer is at fault.
Employees have duties at common law to take care for themselves and for their fellow employees. Many civil claims for work-related injuries have been based on the negligence of employees. Employers are vicariously responsible for the negligence of their employees and their breach of duty.
Employers may also be directly liable for their own negligence and/ or vicariously liable for that of their employees. Each may be contributorily liable. Most commonly, the employer only is sued. If the employee is named or joined as a co-defendant, he may be entitled to an indemnity from his employee under the terms of his contract. He may be covered by his employer’s liability insurance policy.
In principle, a person who is vicariously liable for another is entitled to indemnity from the person for whom he is vicariously liable. This may mean that in the absence of a counter indemnity or and express or implied provision to the contrary in the contract of employment, the employer may be entitled to indemnity from the employee, where he has incurred vicarious liability to a third party, for the employee’s negligence. The issue has arisen in Ireland in the context of an employee who had his own motor insurance.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 43
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella Ch 4,5
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks Ch 6
Civil Liability for Industrial Accidents 1993 While
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
Tolleys Health and safety at work, 2017 29th ed Bamber,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Forlin
Health and safety at work: European and comparative perspective Ales.
Health and Safety Law 5th Ed 2005 Stranks
Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;
The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)