Employer’s Common Law & Duties

Common Law

Common law is not embodied in legislation. It consists of rules that are based on common usage and court decisions.

English common law became the basis of law in the USA and many other English-speaking countries.

Common law developed after the Norman conquest of 1066. Becoming law that was common to the whole of England, overriding local law.

Under Henry II, in the 12th century, the court system became established . Judges’ decisions became recorded in law reports, overtime the ‘doctrine of precedent’ was developed.

The doctrine of precedent forces courts to regard how the principles of law were laid down in similar, earlier reported cases.

This created common law, sometimes referred to as judge made law.

Common law helps keep the law in harmony with the needs of the community where there is no applicable legislation. It is also vital where legislation requires interpretation.

Employers common law duties

The employer’s duty to their employees is commonly dealt with under four headings; The provision of:

  • The provision of competent staff
  • The provision of a safe place of work
  • The provision of safe plant and equipment
  • The provision of a safe system of work
  • The provision of safe means of access and egress
  • The provision of a safe working environment
  • The provision of adequate levels of supervision

The employer’s duty to their employees is personal and non-delegable. They can delegate the performance of the duty to others, whether employees or independent contractors, but not responsibility for its negligent performance.

Wilsons & Clyde Coal v English [1937] 3 All ER 628.

Competent Staff

The employer has an obligation to select competent fellow employees, and a duty to give them proper instruction in the use of equipment.

Smith v Crossley Bros (1951) 95 SJ 655.
Hudson v Ridge Manufacturing [1957] 2 All ER 229.
Harrison v Michelin Tyre Co [1985] 1 All ER 918.

If an employer knows, or can foresee that, acts being done by employees might cause physical or psychological harm to a fellow employee, it is arguable that the employer could be in breach of duty to that employee if he did nothing to prevent those acts when it was in his power to do so.

Waters v MPC (2000) 27 July.

Safe Place of Work

An employer must take such steps as are reasonable to see that the premises are safe.

Davidson v Handley [1945] 1 All ER 235, 236.
Latimer v AEC Ltd [1953] 2 All ER 449.
Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265.
Cook v Square D Ltd [1992] ICR 262, 268 and 271.

Adequate Plant and Equipment

An employer has a ‘duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition’.

per Lord Herschell, Smith v Baker [1891] AC 325, 362

If necessary equipment is unavailable and this leads to an accident, the employer will be liable, although he is not necessarily bound to adopt the latest improvements and equipment.

Toronto Power Co v Paskwan [1915] AC 734

If the employee would not have used the safety equipment if it had been supplied, the employer’s breach of duty is not the cause of injury.

McWilliams v Sir William Arrol & Co [1962] 1 All ER 623

An employer will not be liable if a worker fails to make proper use of the equipment supplied, nor where the employee acted foolishly in choosing the wrong tool for the job, assuming that, where necessary, the employee has been given adequate instruction in the use of the equipment.

Parkinson v Lyle Shipping Co [1964] 2 Lloyd ‘s Rep 79.
Leach v British Oxygen Co (1965) 109 SJ 157.

Safe System of Working

A particular operation may require a system of work in the interests of safety, or may reasonably be left to the employee charged with the task. The term is usually applied to work of a regular type, where the proper exercise of managerial control would specify the method of working, give instructions on safety and encourage the use of safety devices.

Speed v Thomas Swift & Co [1943] 1 All ER 539.
General Cleaning Contractors v Christmas [1952] 2 All ER 1110.

Although normally thought of in terms of physical safety, it is clear that the obligation to provide a safe system of work also extends to an employee’s psychological health.

Petch v Customs and Excise Commissioners [1993] ICR 789.
Walker v Northumberland County Council [1995] 1 All ER 737.

If an employee suffers psychological harm as a result of witnessing a ‘shocking event’ for which his employer is responsible, then the ordinary rules for such claims apply. The employee must bring himself within the category of a ‘primary victim’, or satisfy the restrictive criteria applied to ‘secondary victims’:

White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1.

In some cases, a warning of the danger to a skilled employee will be sufficient to discharge the employer’s duty, and in others it may be reasonable to expect experienced workers to guard against obvious dangers.

Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265 (above).
Baker v T. Clarke Ltd [1992] PIQR 262, 267.
Rozario v The Post Office [1997] PIQR P15.

Aspects to the provision of a safe system of work

There are two aspects to the provision of a safe system of work:

  • The devising of system
  • The operation of the system

Even if the system itself is safe, a negligent failure to operate the system, whether by another employee or an independent contractor, will render the employer liable.

McDermid v Nash Dredging Co [1987] 2 All ER 878.

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