Solicitors in the personal injury department here at McCarthy + Co are frequently consulted by individuals who have sustained injuries in the workplace but are unsure if any breach has occurred in terms of their employer’s duty of care.

To help clarify, we have put together the following guide in question-and-answer format. It covers the law surrounding duty of care, the responsibilities of your employer, your responsibilities as an employee, and the steps you can take in bringing a claim.

What is an employer’s duty of care?

An employer’s duty of care refers to the legal obligation to safeguard employees from foreseeable harm or risks while at work. This encompasses ensuring a safe working environment, providing appropriate training and equipment, and implementing measures to prevent accidents and health issues. The duty extends to both physical and psychological well-being, requiring employers to address hazards, protect against workplace bullying or harassment, and respond to any identified risks. Failure to uphold this duty can result in legal repercussions for the employer if an employee suffers harm due to negligence. The specifics of this duty are rooted in both statutory laws and common law precedents.

What are the statutory laws in Ireland regarding duty of care?

The primary statutory law regarding an employer’s duty of care is the Safety, Health and Welfare at Work Act 2005. This Act sets out the obligations of employers to ensure the safety, health, and welfare of their employees while they are at work. It requires employers to identify hazards, assess risks, provide necessary training, equipment, and resources, and prepare a safety statement detailing the health and safety measures in place. The Act is comprehensive, covering diverse workplace scenarios and risks. Non-compliance can result in enforcement actions, including fines and prosecutions, by the Health and Safety Authority.

What are common law duties?

Common law duties refer to obligations and standards established over time through court decisions rather than statutes or written laws. In the context of employment, common law duties of care require employers to take reasonable steps to ensure the safety and well-being of their employees. These duties are shaped by precedent, meaning they are based on past court judgments in similar cases. If an employer breaches these duties and an employee suffers harm as a result, the employee might have grounds for a negligence claim. The specifics of what constitutes “reasonable care” can vary based on the circumstances and previous case rulings.

What are the employer’s duties as set out in The Safety, Health and Welfare at Work Act 2005?

Employers, including the self-employed, bear the primary responsibility for ensuring a safe and healthy work environment. The Act sets out that their obligations must encompass:

• Overseeing all work tasks to guarantee safety, health, and welfare, and averting any actions or behaviours that might endanger employees.
• Establishing a secure workspace with safe entry and exit points, utilising equipment that poses no health risks.
• Mitigating hazards related to materials, exposure to harmful agents, noise, or radiation.
• Structuring work systems that prioritise safety and health, with adaptability for necessary revisions.
• Offering essential welfare amenities for staff.
• Imparting safety and health knowledge, training, and guidance in an understandable format.
• Collaborating with co-occupant employers to ensure a unified safety approach for all workers, while also sharing vital safety data.
• Supplying necessary safety gear and attire to workers without any charge.
• Designating experts to guide on adhering to health and safety regulations.
• Shielding non-employees within the workspace from potential risks.
• Reporting any significant accidents or hazardous incidents to the Health and Safety Authority.

What does The Safety, Health and Welfare at Work Act 2005 say about risk assessments?

The Act underscores the importance for employers, as well as those who are self-employed, to proactively manage safety and health to avert injuries and illnesses in the workplace. A written safety statement serves as the foundational document for managing health and safety. This statement outlines a strategy for ensuring the well-being, safety, and health of employees while on the job. The statement should be drafted once the employer has identified potential hazards and evaluated the associated risks in the work environment.

Employers may be in breach of the Act if they have failed in any of the five following key stages of risk assessment:

1. Identifying the Hazards – this could include the potential for slips, trips, and falls, hazards associated with manual handling of loads, exposure to harmful substances or noises, risks related to electricity, water, fire, and explosion, as well as many others.
2. Assessing the Risks – the company’s risk assessment must address any significant hazards, must cover all aspects of an employee’s work, and must cover both routine work and non-routine tasks (such as occasional maintenance work).
3. Selecting the Control Measures – employers must consider the General Principles of Prevention as set out in Schedule 3 of the Act. The General Principles include the avoidance of risks, the evaluation of unavoidable risks, the combating of risks at source, the adaption of work to the individual, the adaption of the workplace to technical progress, the replacement of dangerous articles and substances, the priority of collective measures of safety over the individual, the development of an adequate safety policy, and the giving of appropriate training and instructions to employees.
4. Writing the Safety Statement – This document must: detail the measures to mitigate identified risks, specify individuals in charge of enacting and upkeeping these measures, include emergency response plans and strategies for immediate threats, and provide the names of designated safety representatives, if applicable. If there are notable changes in work procedures, such as introducing new tools or materials, or if there’s evidence suggesting the statement isn’t accurate (like an accident, near miss, or dangerous event), the safety statement should be re-evaluated. If an Inspector advises, the document must be updated within 30 days. Employees must be made aware of the safety statement.
5. Recording and Reviewing – A completed Safety Statement isn’t merely an item to check off the management’s task list. As workplaces evolve, the Safety Statement should reflect those changes and address new risks. Companies should revisit their Safety Statement at least once a year. Furthermore, maintaining comprehensive records of risk evaluations and implemented controls is crucial for compliance with the Act.

Do employees also have a duty of care in the workplace?

Yes, absolutely. The Safety, Health and Welfare at Work Act 2005 is not a one-way Act. Every employee, irrespective of their role, employment status, or contractual agreement, holds responsibilities under the Act. They’re expected to follow the applicable laws, safeguard their own well-being and that of others affected by their workplace actions. Employees must refrain from being under any substance that might render them a safety risk at work. They are also required to collaborate with their employers on health and safety concerns, steer clear of behaviours that threaten safety, attend safety training sessions provided by their employer, utilise equipment and protective gear appropriately, and promptly alert them about any workplace hazards or equipment flaws that could compromise safety.

Failure to comply with these responsibilities, especially when set out clearly by the employer, may invalidate any claim an employee makes in relation to an illness or injury sustained at work. Furthermore, reckless behaviour by an employee that causes harm to other employees or company property could be subject to criminal proceedings.

Should I be worried about making a claim against my employer?

It’s understandable that you may have concerns about bringing a claim, particularly if it’s unclear where the fault of the accident or illness lies. However, you and your job are protected under Irish law by The Protected Disclosures Act 2014. You cannot be fired for making a claim against your employer and, if they were foolish enough to do this, you would have the grounds for taking legal proceedings for unfair dismissal. If you have any worries about the basis of your claim, the best thing to do is to discuss your case with an experienced personal injury solicitor.

Do you believe your employer has breached their duty of care?

If you have sustained an injury or illness through your work activities, and you believe your employer is at fault for not adhering to the law in terms of their duty of care, you may have the grounds to bring a compensation claim against them. Call us on 1800 816 597 and an experienced member of our personal injury team will discuss your situation and potential next steps. You can also email info@mccarthy.ie and we will get back to you as soon as we can.