General Issues

Employer’s Liability Overview

Employers owe duties to take care for the health, safety and welfare of their employees. When a workplace accident occurs, it will often be attributed to the breach by the employer of his common law and / or statutory duties, in which case the employee must be compensated for the loss and damage that arises. In recent years, this duty has been extended beyond physical injury, to cover stress and bullying in the workplace.

The content of the duty of care is very much dependent on the circumstances.  The particular circumstances of the employer and employee are taken into account.  The employee’s age and experience are relevant factors. The employer’s experience and knowledge of the particular risks are relevant.

Evolution of Employers Civil Liability

At common law, an employer owes a duty of care to employees to take care for their safety in the course of employment.  However, in the 19th century, a number of pro-employer defences were evolved by the courts.  This included the doctrine of common employment, voluntary assumption of risk and contributory negligence.

The effect of these doctrines was to remove or reduce substantially, the employer’s liability for workplace accidents.  They were based on the notion that the employee was partly responsible for, or consented to the relevant risks by taking up employment.

Most of these nineteenth-century doctrines, which placed the risk of many dangers on employees, no longer apply.  The common law duty of care owed by an employer to an employee is to take reasonable care for the employee’s safety in the circumstances. It is measured by reference to the standards of a hypothetical, reasonable and prudent employer.

General Negligence Principles Apply

The general principles of negligence apply to claims by employees. The employee must show a duty of care, breach of that duty and consequent loss and damage. The loss and damage must be occasioned by the breach of duty and must have caused personal (bodily) injury or property damage. There may be consequential financial and other loss.

The special discoverability provisions in the statute of limitations apply in respect of claims based on personal injury. This is of particular relevance in the case of occupational diseases which develop gradually.

Workplace accident and occupational injury claims must go through the Injuries Board (formerly the Personal Injuries Assessment Board) procedure. There is a requirement to get a release from the Injuries Board in order to take a civil claim.

Elements of the Employer’s Duties

An employer has a duty to take care for the health safety and welfare of its employees. Most employment related claims are based on negligence and/ or breach of statutory duty.  The duty in negligence is not unconditional. The employee will not recover damages for loss or injury unless they have been caused by a failure by the employer to comply with the requisite duty of care.

In some cases, the employers may be liable for breach of statutory duty, which will apply regardless of fault. There are very limited defences in this case. Once the loss or injury is caused by breach of the duty, the employer is usually thereby liable. The statutory duty defines the obligation of the employer so that its breach will entail fault in a broad sense.

The four principal duties of an employer at common law are

  • the duty to provide competent employees;
  • the duty to provide a safe system of work;
  • the duty to provide a safe place of work;
  • the duty to provide proper equipment.

The employer is liable for the actions of his employees and others under his control under the principle of vicarious liability. An employer is vicariously liable for his employees and  may be vicariously liable for some independent contractors and others who are under its broad control, under general principles.

Establishing Liability for Negligence

In accordance with general principles of negligence, the employee must show

  • that the employer owed a duty of care to him in the circumstances;
  • that he has breached that duty;
  • that in consequence of the breach of duty;
  • he has suffered loss and damage.

The loss and damage is typically personal injury. It may also be damage to goods or other assets. As with negligence generally, recovery is not generally allowed for pure economic loss in the employment setting. Economic loss is allowed where it is consequent on personal injury. Therefore, where there has been a personal injury, the economic loss to the claimant may be recovered in full.

An employer may fail to take reasonable care by either act or omission. An employer is usually required to take measures to remove unnecessary risks.  The employer is usually obliged to minimise unavoidable risks. Warnings may not suffice.

Scope of Employer’s Liability

The employer may be held liable for its own failures, or that of its senior management and supervisors to maintain a safe system of work, to provide adequate supervision or to take adequate steps to address acts of an employee in breach of workplace rules. In this case, the employer is liable for its own negligence. The actions of directors and senior management are attributed to the employer (usually, but not necessarily a corporate employer).

Corporate entities, must of necessity act through agents. The actions of its management will constitute the actions of the company. The actions of its employees in many instances may also be deemed actions of the company and./or actions for which the company is responsible, under principles of vicarious liability.

The employer is vicariously liable for its employee’s breach of duty in the course of employment. This greatly increases the scope of his potential liability. Particular accidents may be attributed both to the negligence of the employer in organisational terms and may also be due to the negligence of fellow employees.

Standard Required of Employer

The traditional employment relationship usually involved the employer having a high degree of control. In many modern workplace settings, the employer has little or no control over how the employee performs the duties of the employment. The employer nonetheless, retains overall responsibility for the operations and work.

The general criteria applicable to negligence apply to employers. However, much more is expected of employers in relation to their employees, than would apply to others in the same or similar circumstances.  The courts in practice place a heavy onus on employers to take care for the health safety and welfare of their employees. Employers are nearly always better placed than their employees to manage the workplace and control the risks in it.

Although the employer’s duties in a claim for negligence are not absolute, the courts show a marked inclination to place most risks on the employer. Even in the case of smaller scale employers, the courts tend in practice to find the employer liable if at all possible, where there has been an accident causing personal injury or other loss.  The employer should have liability insurance as a matter of prudence. However, its availability in the circumstances will not be known to the court.

Duty is Context Dependent

The requirements of the duty vary according to the circumstances of the employer and the employee. The particular circumstances and risks of the workplace are relevant to the nature of the duty. All aspects of the workplace, the employer and employee are taken into account. For example, a higher duty is owed to inexperienced employees. All things being equal, more is expected of a larger organisation than a smaller scale employer with less resources.

The risks arising in the particular sector are taken into account. Steps should be taken to guard against hazards which are known in a particular industry or are foreseeable.  There may be an obligation to warn employees about particular risks.  The employer is not under an obligation to warn in respect of patent and obvious risks.

The employer’s duty (and prospective liability for negligence and breach of duty) varies according to circumstances of the employer and the employee.  However, it is fair to say that the duty owed to an employee is high and that an employer will be commonly found liable for a workplace accident.

Extent of Duties Issues

An employer has positive duties under tort (civil liability) principles as well as under Health Safety and Welfare at Work legislation. The employer will often be responsible for its omissions in failing to reach the requisite standards. This is unlike the manner in which negligence and civil law duties operate in other contexts, whereby there is usually no liability for omissions and failures to act.

Employer’s and businesses may be liable for loss or damage caused to non-employees.Common law duties of care are owed to third parties, subcontractors, employees, agents and other on premises in accordance with ordinary principles.

As with negligence generally, the courts consciously or implicitly take account of the risks and the probability of their occurrence relative to the costs of their avoidance and mitigation.

Where a particular precaution is warranted in the interest of the safety of employees, there may be countervailing considerations such as exceptional cost, which justify the employer in not taking that precaution. However, where lives and serious personal injury are at stake, considerations of expense are less likely to be given significant weight.

Limits to Employer’s Duties

The employer’s duties are not absolute.  The employer must only do what is reasonable in the circumstances.  This does not necessarily require every conceivable measure which would have prevented the accident, even if those measures were technically or economically possible.

While the employer’s duty is to take reasonable care for the safety of employees, the law does not require an employer to ensure the safety of his employees in all circumstances. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.

The fact that a particular precaution might have avoided the accident which caused the injury is insufficient to establish liability unless it would have appeared to be the case to a reasonable and prudent employer before the accident.

There will usually be no obligation to point out the obvious and unavoidable. Reasonable care is what is required. Every eventuality need not be foreseen. There may be a subjective element of judgment in marginal cases. The employer is not an insurer.

The nature of the employment may itself may carry such inherent risks that the employer may not be in breach of the duty of care in relation to some accidents and personal injuries, provided that adequate training is provided.

References and Sources

Irish Books

Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 4

Civil Liability for Industrial Accidents 1993 White Vol 1 Part 1

The Law of Torts McMahon & Binchy 2013 4th Ed Ch18

Insurance Law Buckley 4rd Ed 2016 Ch 13

UK Books

Charlesworth & Percy on Negligence 2014 Walton Ch 10