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Employer's Duty of Care

By: Kevin Watson MSc - Updated: 27 Sep 2018 | comments*Discuss
 
Duty Of Care Employer Health And Safety

Every UK employer has a duty of care. This is critical to the health, safety and general welfare of all employees. Not all employers are aware of the implications of the duty of care. But it doesn’t matter how small a business happens to be. Where there’s a member of staff, there’s a duty of care responsibility.

Starting Point

The starting point for an employer is to have a person who deals with health and safety matters. This person must be legally ‘competent’. In other words, he or she should be an adult with the ability to understand Health and Safety Issues.

A medium-sized or large organisation may have a trained member of staff who acts as the competent person. In a small concern, it is likely that an owner or director will take on the role.

Risk Assessment

When it comes to duty of care, the primary job of the competent person is to conduct a Risk Assessment. This must identify the health and safety risks each employee faces at work.

The outcome of the risk assessment may vary according to the size of an organisation. If it has five or more employees, the competent person has to keep a record of the assessment’s results.

The employer of such an organisation must arrange for a plan that addresses all the identified risks. He or she must also create a health and safety policy. This policy should mention the provisions that protect employee health and safety.

Furthermore, the employer must ensure each employee knows about the policy and the provisions.

Legal Position

Generally speaking, duty of care comes into force when a person or group of people do something that might reasonably harm somebody. This harm may be in the form of mental or physical injury. It’s also possible that the harm could be financial.

In the context of work, duty of care is legally binding on an employer. Put simply, an employer must abide by what the law refers to as a standard of reasonable care. The standard of reasonable care applies to a work-related matter that could injure someone. This is why a risk assessment to identify such issues is vital.

An employer may neglect this duty of care. If so, and if a problem arises, an affected employee may be able to proceed with a claim of Negligence.

Test

In 1990, the House of Lords made a judgement in Caparo Industries plc v Dickman. This judgement established a test for duty of care that has three parts. The first part relates to any harm an employee suffers. This harm must occur as a result of the action or inaction of the employer. The employer must also have been able to reasonably foresee the harm.

The second part deals with the relationship between a claimant and defendant in a duty of care legal case. The House of Lords judgement states there must be proximity in this relationship. In other words, there must be a relationship such as that between an employer and employee.

The third part concerns liability. In the eyes of the law, there should be fair, just and reasonable cause to impose a duty of care liability on an employer.

As with any legal matter, however, an employee concerned about duty of care should seek detailed advice.

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My friend works for a large company. She has vocal cord dysfunction and acute asthma. She has bad reactions to body sprays and perfumes and ends up in hospital to be nebulised if somebody sprays. Health and safety imposed measures of no spraying in the office or corridor but this has not solved the issue. Employees deliberatly spray now when nobody is watching and then she ends up in hospital. H&S state that any spraying will result in disiplinary procedings but have still not disciplined any members of staff. This has been going on for over 2 years and at least 15 hospital stays as a result. It sickens me that people will deliberatly go out of their way to harm someone but believe the employer is at fault as they have failed to act on the implemented steps from H&S.
Robert - 27-Sep-18 @ 10:28 AM
I recently worked a late shift finishing at 10pm i told my HOD i had no means of transport, im on minimum wage and cant affird taxis and would have to walk the 5 and half miles home in the dark. She took no notice so i had no other choice but to do it, im 58 yrs old female What are my rights to refuse to work a shift that inolves me having to walk
Nana b - 19-Aug-18 @ 1:00 PM
I have a co worker who is ill but is still attending work. The group of people who have to work with her have been told to keep their eye on her as we are dealing with machines. This person passed out and by luck I was next to her to catch her. This was hilighted to a person in charge but nothing has been done about it. What rights have i have as a duty of care to me as it's starting to put stress on me that we have to look after machines and watch a fellow colleague?
soshy - 29-Jul-18 @ 5:00 PM
My husband is a mobile engineer.He currently has a 5 week job at a Category B prison.He is escorted most of the time but what duty does his employer have to insure him and pay sick leave if he is attacked by a prisoner?
jackanory - 26-Jul-18 @ 1:12 PM
I work for a large organisation which involves face to face appointments with vulnerable people. Our organisation refuses to risk assess for potential problems with clients and we are told that we cannot risk assess as it is judgmental. I was under the impression that the employer has a legal duty to assess risk ; we are told no, we must not ask about for example, nature of offence in relation to a prison leaver. What can we do to ensure that we are not at risk when at these appointments
Chrissychrissy - 10-Jul-18 @ 6:28 PM
I am currently suffering with terrible back pain to the point that I can't turn round properly and am getting terrible back spasms. I work in a school at lunchtimes this involves cleaning tables (bending over) and patrolling the playground. I told my line manager of my back pain and asked if I could go home as I was in significant pain (I felt like crying it hurt that much) all I was told was "oh no if it still hurts put your handup and I'll come and see you! " I wasn't sent home or have it suggested. I can barely move and I think I've aggravated it further..any advice on what to do as I don't feel ill be able to make it to work tomorrow. I'm living in London (UK). Should she of at least offered me the opportunity to go home?
Ems - 10-Jul-18 @ 3:06 PM
Bex - Your Question:
Last week I was asked to spray a large quantity of hairspray onto some fabric then send it through a hot machine I fetched up my concern and ask for a health and safety risk assessment.so I was made to think it had been done and all was ok so I did it.after doing the task I began to feel funny and fetched it up to be shrugged off.Today another lady was given the job and has now had to leave work due the effects of the spray.i have now gone to ask about the risk assessment to be told it wasn't done! What shall I do next?

Our Response:
Raise a formal complaint with your employer. Contact HSE (Health and Safety Executive) if you're not happy with the response.
SafeWorkers - 22-Jun-18 @ 12:27 PM
Last week I was asked to spray a large quantity of hairspray onto some fabric then send it through a hot machine I fetched up my concern and ask for a health and safety risk assessment...so i was made to think it had been done and all was ok so i did it...after doing the task I began to feel funny and fetched it up to be shrugged off. Today another lady was given the job and has now had to leave work due the effects of the spray...i have now gone to ask about the risk assessment to be told it wasn't done! What shall I do next?
Bex - 21-Jun-18 @ 12:30 PM
Hi, I have a colleague with diabetes who has been having episodes at work as he is stressed over his working conditions changing, I have brought this to the attention of management on numerous occasions but nothing has been done, I am thinking this comes under duty of care and my employers should be acting on these concerns - is this correct.
Liz - 20-Jun-18 @ 1:18 PM
Hi I suffer with anxiety and depression and a personality disorder, my employee continually breaks working time regulations repeatedly mainly putting me on a 1am finish and back in at 7am, I’ve raised these concerns several times especially after I did one of those shifts and fell asleep at the wheel with my 3 month old and 18 month old in the car, I feel my duty of care has been neglected due to the business performing poorly not having enough staff etc this has been going on for 18 months now my mental health has completely shattered I’ve been of sickand I’m subject to disciplinary action due to poor decisions made, I was mainly wondering if I have any reason to take them to tribuneral for not fulfilling there duty of care to me
Alex - 20-Jun-18 @ 2:48 AM
Hi i work in a car spares yard and i dismantal cars im concerned about the state of the yard eg: wheels and tyres every where car spares everywhere engines and cars blocking up . Everywhere i go i have to step over or find another way through .i have told my boss to sort this out also im just asking does my boss have to supply foot wear and work wear or not thanks
Jb - 13-Jun-18 @ 10:31 PM
Rob78 - Your Question:
I work in a small pub kitchen. The main lights have failed. I have little natural light, the only other light comes from the hot lights. These are bright and only light over a certain area. I have started to get headaches due to this.Would I still get paid if I refuse to work.

Our Response:
Why don't you ask for the lights to be fixed?
SafeWorkers - 12-Jun-18 @ 2:37 PM
I work in a small pub kitchen. The main lights have failed. I have little natural light, the only other light comes from the hot lights. These are bright and only light over a certain area. I have started to get headaches due to this. Would I still get paid if I refuse to work.
Rob78 - 11-Jun-18 @ 4:51 AM
Instacoin- Your Question:
Hey; I returned to work after a short (2day) spell of depression. In my return to work after stating depression as the reason, my employer only wrote down 'Migraine' and said we will just leave it at that. No support was provided and once raised with HR, a duty of care was to be arranged and was not. Any advice?

Our Response:
Contact your HR dept and ask them why they haven't done as promised and wouldn't list depression as your reason for absence?
SafeWorkers - 16-May-18 @ 2:46 PM
Petomam - Your Question:
I have returned to work after full knee replacement. Have had occ health and risk assessment am ok and fit for work. Been back 3 months. Change in rota now means a 10 hour day shift which I know will impact my rehabilitation. I cannot be on my feet that long and my other knee joint would also be effected. due for replacement in around 8 months. can I challenge this shift pattern change. I dont want my boss to say I am unfit for work

Our Response:
Talk to your hospital consultand, or GP and also occupational health to see what they say.
SafeWorkers - 15-May-18 @ 1:54 PM
Hey; I returned to work after a short (2day) spell of depression. In my return to work after stating depression as the reason, my employer only wrote down 'Migraine' and said we will just leave it at that. No support was provided and once raised with HR, a duty of care was to be arranged and was not. Any advice?
Instacoin - 15-May-18 @ 8:25 AM
Ben - Your Question:
I working in a commercial kitchen, our fryer has been condemned due to an oil leak over the burners. Our boss fixed it using putty and is now tring to force the staff to use it even though it been conbemed and hasn't been signed off safety use. Is this legal and what are our rights for refusing to work with it

Our Response:
Report this to your trade union. If you do not have a trade unions raiseformal grievance with your employer. ACAS will be able to offer additional advice.
SafeWorkers - 14-May-18 @ 2:16 PM
I working in a commercial kitchen, our fryer has been condemned due to an oil leak over the burners. Our boss fixed it using putty and is now tring to force the staff to use it even though it been conbemed and hasn't been signed off safety use. Is this legal and what are our rights for refusing to work with it
Ben - 14-May-18 @ 12:10 PM
I have returned to work after full knee replacement. Have had occ health and risk assessment am ok and fit for work. Been back 3 months . Change in rota now means a 10 hour day shift which i know will impact my rehabilitation . I cannot be on my feet that long and my other knee joint would also be effected .. due for replacement in around 8 months ... can i challenge this shift pattern change .. i dont want my boss to say i am unfit for work
Petomam - 11-May-18 @ 7:40 PM
Mmm - Your Question:
Hi I’m a recovery driver and employer has a crew cab truck which means I’m unable to put the seat far enough back as I’m 6ft 4 and got back and knee pain due to not being able to postition my seat properly.I requested to be assessed in the seat 6 weeks ago still haven’t had anyone to look at my position in the truck. I’m now on the sick due to the pain in lower back and knee are they required by law to give me a suitable truck they have these vehicles on there fleet which I can fit in no problem

Our Response:
Your employer has a duty of care towards you, there are no specific laws and type of equipment that your employer should provide you with. If your employer is not acting on your request for an assessment, then contact HSE to request further advice.
SafeWorkers - 11-May-18 @ 10:23 AM
Hi I’m a recovery driver and employer has a crew cab truck which means I’m unable to put the seat far enough back as I’m 6ft 4 and got back and knee pain due to not being able to postition my seat properly.I requested to be assessed in the seat 6 weeks ago still haven’t had anyone to look at my position in the truck. I’m now on the sick due to the pain in lower back and knee are they required by law to give me a suitable truck they have these vehicles on there fleet which I can fit in no problem
Mmm - 9-May-18 @ 4:34 PM
Miss m - Your Question:
My partner drives an hgv full time and is experiencing back pain through an uncomfortable driving seat. Does his employer have a duty of care to provide something on his seat that can reduce backpain like if he was to work in an office?

Our Response:
The employer has a duty of care to its employee but the rules relating specifically to driving, tend to focus on length of driving time and ability to focus attention/fatigue etc. HSE suggests that drivers should be:
competent and capable of doing their work in a way that is safe for them and others;
properly trained;
sufficiently fit and healthy to drive safely and not put themselves and others at risk;
provided with information that will help them reduce risk (eg recommended tyre pressures);
provided with appropriate advice on driving posture.

Vehicles should be:
fit for the purpose for which they are used;
maintained in a safe condition and fit for the road.
SafeWorkers - 8-May-18 @ 11:48 AM
My partner drives an hgv full time and is experiencing back pain through an uncomfortable driving seat. Does his employer have a duty of care to provide something on his seat that can reduce backpain like if he was to work in an office?
Miss m - 5-May-18 @ 8:08 PM
Hi, my employer at a retail park wants me to park behind the shop rather than in the main well lit and busy car park. The area is poorly lit and secluded where anybody could be waiting and as a woman i feel unsafe. Most shops refused the land owners request to make their staff park there and i think my employer is neglecting their duty of care towards staff. They are not interested in putting any safety procedures in place or reverting back to the safe car park. What are my rights and what is their liability? They also said disciplinary action may be taken against anyone parking in the safe car park!
Emma - 4-May-18 @ 4:27 PM
Vikkkk - Your Question:
I have been signed off work for three days with severe dydratation. I work in a small fast food kitchen, the air conditioning was condemned over a year ago and we are not allowed to open any doors for pest control reasons and there is no windows. It regularly gets above 27 degrees and quickly reaches 29 degrees on hotter days. The actual unit is being held on with cable ties does not work at all and appears dangerous. There is also cracked tiles around our vats (177 degrees) which are not slip resistant at all, both I consider to be serous breaches of health and safety and have been reported on more then one occasion. The air conditioning easily reported more then five times and is always picked up on, on the EHO reports we are given 3 months to fix it yet everytime it is ignored.I am going to hand in my notice and move on as I am risking my health, after the severe dehydration which scared me I was almost in hospital. What I want to know is there anything I can do to force them to sort out the issues after I am gone? I am also gutted to leave to my job as this is the only reason I have to leave.

Our Response:
You could consult a solicitor to see if it's worth a private suit. Also, contact environmental health which has a responsibility for overseeing commercial kitchens.
SafeWorkers - 27-Apr-18 @ 12:35 PM
I have been signed off work for three days with severe dydratation. I work in a small fast food kitchen, the air conditioning was condemned over a year ago and we are not allowed to open any doors for pest control reasons and there is no windows. It regularly gets above 27 degrees and quickly reaches 29 degrees on hotter days. The actual unit is being held on with cable ties does not work at all and appears dangerous. There is also cracked tiles around our vats (177 degrees) which are not slip resistant at all, both I consider to be serous breaches of health and safety and have been reported on more then one occasion. The air conditioning easily reported more then five times and is always picked up on, on the EHO reports we are given 3 months to fix it yet everytime it is ignored. I am going to hand in my notice and move on as I am risking my health, after the severe dehydration which scared me I was almost in hospital. What I want to know is there anything I can do to force them to sort out the issues after I am gone? I am also gutted to leave to my job as this is the only reason I have to leave.
Vikkkk - 24-Apr-18 @ 7:10 PM
My friend is a civil enforcement officer (traffic warden), he is having his home attacked after he was put on social media and his name was mentioned, the head of his work has apologised that they made a statement on social media that made it look like my colleague shoulf not have issued the parking ticket when in fact he was completely right to do so. But they have not corrected the statement which said he needed retraining, nor apologised in writing, nor asked the local papers website which had a comment which included his name to redact it. They also have not apologised in writing and have still not replied to his grievance over 5 months ago, he is now going to tribunal. Where does he stand with the attacks at home and to his vehicles? Is there a duty of care to pay for his cctv or safety devices (fireguarding his letterbox)? Thank you
Boo - 4-Apr-18 @ 1:55 PM
My employer is aware of my extreme allergy and heart conditions, however, they keep exposing me to my allergy despite a risk assessment being made and my demands of them to stop using what I’m allergic to as it is not detrimental to the job, she also needed to be asked twice before she even asked for cover for me when I was having chest pains and palpitations and needed to go to A&E where I did multiple tests, where they found that my heart was suffering because of a throat infection I had been exposed to at work because of their lack of care when it comes to sickness. Is there something I can do about this, as I feel unsafe in my workplace but cannot afford to lose my job?
Rhian13 - 21-Mar-18 @ 11:59 AM
I work in a retail security industry. The company that I work for are aware of my health conditions. They know I can't stand for many hours at work because of dvt on y right leg, plus I had kidney transplant almost 2 years now. I feel neglecting by this and they are breaching the "care conduct of employees'. It seems they don't care about my wealth being, but themselves. What advise can you give me?
Van - 14-Mar-18 @ 9:32 AM
I have recently moved to a new building at work, the internet has not yet been activated, meaning I cannot input my invoices, income, stocktake etc. I am 4 weeks behind now!! I cannot do my job properly!!! My manager told me I had to come up with a solution—- I.e. travel to another unit and use the pc there. Surely it’s ‘duty of care ‘ my employer should install the correct tools for me to fulfill my needs to do my job?? He told me I was being ‘obtrusive ‘ when I expressed my concerns that I was unhappy with the support I was receiving from him? This situation is affecting my home life!!! HELP!!!
Debbz - 25-Nov-17 @ 4:49 AM
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