To Whom Owed

Duties to Employees

Most duties under health safety and welfare legislation are owed to employees. An employee is defined as a person who has entered into or works under  a contract of employment. It includes a fixed-term employee and a temporary employee. It includes a former employee whose employment has terminated.

References, in relation to an employer, to an employee are interpreted as references to an employee employed by that employer. An employer is defined as the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment.

It includes a person (other than an employee of that person) under whose control and direction an employee works. It includes where appropriate, the successor of the employer or an associated employer of the employer.


Duties to Other Protected Persons

For the purpose of health, safety and welfare at work legislation,

  • a person holding office under, or in the service of, the State (including a civil servant) is deemed to be an employee employed by the State or Government, as the case may be;
  • an officer or servant of a harbour authority or the Health Service Executive or a member of staff of an education and training board is deemed to be an employee employed by the harbour authority, the Health Service Executive or education and training board, as the case may be,
  • a person who is training for employment or receiving work experience, other than when present at a course of study in a university, school or college, is deemed to be an employee of the person whose undertaking (whether carried on by him or her for profit or not) is for the time being the immediate provider to that person of training or work experience;and
  • a share fisherman is deemed to be an employee of the owner or skipper, as the case may be, of a fishing vessel whom he or she accompanies on board the fishing vessel, as a member of the crew, to engage in fishing where he or she is remunerated by a share in the catch or the profits or the gross earnings of the working of the vessel.

Duties to Atypical Employees

Any duty imposed on an employer under health, safety and welfare at work legislation in respect of any of his or her employees shall also apply in respect of the use by him or her of the services of a fixed-term employee or a temporary employee.

Where an employer proposes to use the services of a fixed-term employee or a temporary employee, the employer shall, prior to commencement of employment, give information to the employee relating to any potential risks to the safety, health and welfare of the employee at work, health surveillance,) any special occupational qualifications or skills required in the place of work, and any increased specific risks which the work may involve.

For the duration of the assignment of any fixed-term employee or temporary employee working in his or her undertaking, it is the duty of every employer to ensure that working conditions are such as will protect the safety, health and welfare at work of such an employee.


Duties to Agency Workers

Agency employees, although technically not employees, are deemed to be employees for the purpose of healthy, safety and welfare at work legislation. Where an individual agrees with  an employment agency  to do or perform personally any work or service for another person (whether or not the latter person is a party to the contract and whether or not the latter person pays the wages or salary of the individual in respect of the work or service), then the latter person is deemed to be the individual’s employer for the purposes of the legislation.

The employer must specify to the temporary employment business or agency concerned, the occupational qualifications necessary for and the specific features of the work for which such the employee is required. It shall ensure that the temporary employment business or agency gives the requisite information to the employee. The temporary employment business / agency is also under a duty to give the relevant information to the employee.


Duties to Others in Workplace

Health, safety and welfare obligations are owed not only to employees, but also to other persons in the workplace. The principal obligations are owed to persons who are present at the place of work so that they are not exposed to risk their safety, health and welfare in the course of work. The duties are, for example, owed to employees of another employer or contractor in the workplace.

Employers that share a workplace are obliged to cooperate in complying with their statutory health, safety and welfare obligation. Where there is an accident as a result of pre-existing conditions, the employer in possession or occupation of the premises is likely to be liable.

The host employer is principally liable in respect of the  state of the premises and for equipment supplied.  The direct employer is principally responsible in respect of operations and activities in the workplace.


Duties to Occupiers

Liability may arise for loss or damage in accidents and incidents as a result of the state and condition of the premises, under principles of occupiers’ liability. Liability may arise from the conduct of work activities on the premises.  Accidents may be attributable both to the state and condition of the premises and operational activities so that liability may be attributable in part to the occupier / owner on the one hand and in part to the entity undertaking the activity on the other.

Where non-domestic premises are provided for work to non-employees, (whether contractors or another’s employer’s employees) the host or occupier must ensure in so far as reasonably practicable, their health, safety and welfare in connection with the place of work, access to it and anything provided in it. Duties are owed by the host employer to contractors and his employee.


Duties to Independent Contractors

In many cases, services are contracted out, so that contractors are present on the premises on an constant basis. The duties owed to contractors will depend on circumstances. If the contractor is present at the premises regularly or on an ongoing basis, the duties may be similar to those owed to employee. If they are young or otherwise vulnerable,  the duties owed are likely to be higher than would otherwise apply.

Where outsourced functions such as catering and cleaning are integrated, the host employer’s obligations are likely to be similar to those owed to employees.

Appropriate policies and legal agreements should be put in place with contractors on site. Indemnities may be appropriate. Rules may be appropriate for physical separation and use of equipment.


Self-employed Persons

Health, safety and welfare at work legislation applies, where appropriate, to a self-employed person as it applies to an employer and as if that self-employed person was an employer and his or her own employee. References in the legislation to an employer are intepreted as references to a self-employed person.

Self employed persons must take the same care for their own safety which an employer must take for its employees.  They must exercise care for the the safety of others, where there is a likelihood of another person  being harmed or injured (such as a members of the public, clients or a contractors as a consequence of their work activity.

The self employed person must consider whether there their activity poses a risk to their health and safety or the health and safety of others. They must that take the appropriate steps and measures that the risk assessment required.


Security Personnel

Health safety and welfare at work legislation applies to prisons and places of detention unless their application is incompatible with safe custody, good order and security.

Health safety and welfare at work legislation applies to members of the Defence Forces except when they are

  • on active service or deemed to be on active service;
  • engaged in action in the course of operational duties at sea,
  • engaged in operations in aid to the civil power, or
  • engaged in training directly associated with any of the above activities.


References and Sources

Irish Books

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

Websites

The Health and Safety Authority  www.hsa.ie

Health and Safety Executive (UK) www.hse.gov.uk

UK Books

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;

Statutes

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)

References and Sources

Irish Books

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

Websites

The Health and Safety Authority  www.hsa.ie

Health and Safety Executive (UK) www.hse.gov.uk

UK Books

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;

Statutes

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)