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Employer's Duty of Care

By: Kevin Watson MSc - Updated: 30 May 2020 | 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 wife works for JTF warehouse in Sheffield. Until Covid 19 she worked in the coffee shop. Now due to covid 19 the coffee shop is temporarily closed and my wife has been redeployed and now finds herself on the door managing customer queuing. The company has a policy of only allowing customers into the store in groups of not more than two. My wife has been regularly abused by customers who regularly state that policy is not published on the company website. The amount of abuse has started to affect my wife’s health and even though she has reported this to her managers both by email and orally they do nothing to protect her from abuse. She has requested retraining for another position until the coffee shop reopens but management have not auctioned her request.
LD - 30-May-20 @ 1:03 PM
It is now week 5 of the lockdown and I am stranded at my place of work being the only staff member on site with the employees family. I dont have any travel and happen to stay in a remote part of an island offshore from mainland. I have had no help with my social anxiety as I have been confined to only 1 room. I havent had no interaction with them for weeks now and no help to recieve food. Not once have I been asked if I'm ok or had any sort of help in any form and I'm scared to leave my room or ask for such help because my mind doesn't seem to work with everything going on in my mind. I'm not sure if I'm making a fuss over nothing but I have broke down over the phone so much in the past week to a really close friend and it's the only help I'm having just now. If I'm wrong in writing this then please remove it but I had to wrote something as I'm not sure what's I'm going to do. I have a past of mental and physical health issues and this feeling I'm having is the same feeling I was getting before and I'm scared of a relapse. Its not a laughing matter being stranded without help and its eating away at me. Sorry again but I had to get my story out before I bottled to much up.
I cannot say - 2-May-20 @ 10:59 AM
Duty of care followed? I suffered a stroke at work. First aider at hand who feared I was in the process of suffering a stroke. Ambulance called. My speech slurred anf couldn't hold my arms out without one dropping back down. Face fallen slightly one side. Ambulance still not arrived after 30mins and again no sign after 1 hour. I suggest driving myself to hosp 20 mins away. I wasnt thinking rationally. Employer didnt offer any assistance to stop me from Getting behind the wheel of suggest I am accompanied by someone and if that wasn't possible, organise me a taxi. My partner wasn't informed about what had happened. I had to let them know 6 hours later when I could coordinate agajn. They even set my say nav on my phone to take me to a hospital nearby. I couldn't follow a satnav, I just drove to a hospital I was familiar of to get to. I couldn't speak when I arrived at A&E. Instantly rushed through for treatment. Transfered to another hospital for 3 days. Determined I'd hadba stroke and 3 mini incidents prior and signed off work for a month. Should I have been allowed to get in my vehicle and take myself off to A&E alone unable to lift one arm?
Dickie - 13-Feb-20 @ 4:02 PM
Hello there, I have recently started working as a support worker for adults who have learning disabilities and autism.The lady I support is always showing agression towards staff, scratching, spitting and hitting them.Her mother wants us to take her out into the community regularly.On the three occasions that I have been in the car with her she has been hitting me and scratching me, she even reaches forward to scratch the person in front of her, she does this while her mother is driving the car.I have told my manager that I will not be getting into a confined space with this resident as it is harder to protect myself and there is a risk that she could cause a car accident. Please could you give me further advice on what I can do.Thank you in advance,V Jones
Davus - 12-Jan-20 @ 9:42 PM
we have recently received an email from Hr to asking us to consider a colleague who claims she gets migraines from different smells.Perfume and body sprays were mentioned, I am the only female in the office.We have all since stopped spraying anything in the office.I have recently been sent an email from the colleague asking if i hate her and she has told me i make her so ill by wearing perfume. And that she was that bad she had to to to A&E as they thought shed had a stroke.Since then she has waited for me to arrive to work on several occasions and then go home ill.Yesterday she went to work in a different department.I now feel really upset that she is blaming me for her being ill.May I point out that all the guy's wear aftershave.I have forwarded the email to my manager whohas been working away.I no doubt will have to stop wearing perfume to keep the peace but this is not the first time she has been like this and i fear it wont be the last.Where do I stand?What shall I do? I have started looking for a new job but why should I feel like I am in the wrong and why should I have to leave?
SAMTOR - 19-Jul-19 @ 8:28 AM
Hi, I have worked for my employer for 13 years. I was recently forced to move teams in order to support another team but this is in an office that is literally 5 minutes walk from my house. The office is open to the public. There is an ongoing, vicious dispute between the office staff and local residents who are very vocal on social media and hold weekly protests outside the office. These people are my neighbours,they know my face and my name and where I live. I warned our managers that I was not comfortable about being transferred to this office, but they insisted.What should I do?
Ms P - 12-Jul-19 @ 10:45 AM
my security firm have just changed my hrs to 1300-2200 hrs only giving me 2 days notice I have worked for the company for 13 years but they are on about changing my shifts again to 1400-2300 hrs I have no transport do they have a duty of care for me to get home I live 6 miles away from work which they is no street lights where traffic is busy sometimes
mac - 6-Nov-18 @ 6:46 PM
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
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
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
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
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