Employers must provide a safe system of work under deregulated health and safety
The government has embarked on streamlining health and safety law. Around 89 per cent of health and safety regulations are to be either “scrapped or improved” under its ‘red tape challenge’. While reforms to reduce the bureaucratic burden on businesses are welcome, this should not be viewed as a dilution of an employer’s obligation to provide a safe working environment.
Duty of care
Although the requirement to undertake risk assessments in low-risk settings has been relaxed, along with the frequency of Health and Safety Executive inspections, employers still have a duty to take reasonable care of the health and safety of their employees. This obligation is implied into every employment contract and goes beyond the requirements of the Health and Safety at Work Act 1974 in that it includes protecting employees from unacceptable behaviour within the workplace.
Failing to manage health and safety risks in the workplace proactively is potentially a breach of an employer’s duty under the Act. It also risks automatic unfair dismissal and whistleblowing claims if employees report health and safety concerns and suffer detrimental treatment as a result. These claims do not require employees to have a minimum length of service and compensation for successful claimants is uncapped.
Case law
The recent case Norbrook Laboratories v Shaw demonstrates employers’ liability in this area. Shaw was concerned that his team was experiencing difficulty travelling in the heavy snow of 2010. He emailed his employer requesting information about the company’s policy on driving in snowy conditions and asked if a risk assessment had been undertaken. No risk assessment had been carried out and there was no policy on this issue. Shaw was subsequently dismissed. The EAT found his emails were ‘protected disclosures’ under the Employment Rights Act 1996 as they had drawn a dangerous situation to the employer’s attention. He could not claim ordinary unfair dismissal, as he did not have the two years’ service required, but his claims for automatic unfair dismissal and detrimental treatment for blowing the whistle were allowed to proceed.
Injuries
The reforms remove employers’ automatic liability for workplace accidents and, since last October, employees have had to show their employer was negligent to bring a claim for injury, including mental injury. Employers have a defence to such a claim if they can show they have taken all reasonable steps to protect the employee from the injury in question.
This highlights the importance of employers dealing with any concerns about potential physical health and safety risks, and of protecting the psychological wellbeing of the workforce. Grievances about excessive workload and other stresses within the workplace, including abusive behaviour by colleagues or customers, must be treated seriously and expediently. Employers should take immediate action where they can provide support (such as an employee assistance programme) or remove the factor causing stress. Doing so may provide an employer with a successful defence to a claim for personal injury, or for constructive unfair dismissal.
Pregnancy
Employers still have a special duty to protect the health of expectant mothers. They should carry out a risk assessment for pregnant workers to identify any workplace risk to either the mother or her unborn child. Where potential risks are identified, employers are required to put in place suitable measures to control or remove those risks, including a temporary adjustment to the pregnant workers’ duties or an offer of suitable alternative work. If it is not possible to remove or reduce a serious risk, the expectant mother may need to be suspended from duty on full pay for as long as necessary to protect her and her unborn child’s health.
Charlotte Cooper is head of employment at Plexus Law
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