EMPLOYERS’

LIABILITY
Muya, D.L
Introduction
› Employers’ Liability; Personal
Liability(Non Delegable) !
Employers’ liability to his
employees can be both derived
from the common law and
statutory. The common law aspect
is concerned with the employers’
personal liability to ensure the
physical safety of his employees
Introduction cont…..
› it deals with the reasonable duty of
care to ensure the safety of
employees and also understand
how this duty relates to individual
employees.
› It also focus on the four elements
necessary for the safety of
employees.
Introduction cont………..
It explores the duties owed by an
employer regarding ensuring the
safety of employees.
› addressing the safe place of work,
› Proper plant, equipment and
materials,
› systems of work
› and competent staff in detail.
Introduction cont……….
› Finally,the section addresses a handful
of other rules and principles applying
to employers’ common law duties
including that the imposition of a duty
of care must be fair, just and
reasonable, how the duty applies with
respect to different employees and
possible defenses to liability.
Objectives for this section:

› To understand general duty of

ensuring the safety of employees and
how this relates to certain factual
scenarios
› To know how the duty applies to
certain types of employee.
› To apply possible defences to the
common law duties of the employer
Introduction cont….
› The law covering employers’ duties
can be split into two categories –
› Laws which have developed as a
matter of common law,
› laws which are covered by statute.
Introduction cont……
NB; It should be noted that there is a
partial overlap between these two
categories – although when in doubt,
statutory law will usually be the most
authoritative and straightforward
authority to use.
1. Safety of Employees
Duty to take Reasonable Care to
Ensure the Safety of Employees
› Any given employer holds a duty to take
reasonable care to ensure the safety of their
employees.
› It is important to note that this duty is
personal and non-delegable – in essence,
ultimate responsibility always rests with the
employer – they cannot delegate the duty to
someone else.
1. Safety of employees
› Thus, if an employer hires a company to
build a factory, which then collapses and
injures employees, the employer will be held
liable for the collapse, even though they did
not personally build the factory.
› The employer can still personally sue the
builders, but the employer will be liable to the
employees – he cannot point to the conduct
of another to discharge his own duty.
1. Safety of employees
› This helps to promote workplace safety –
since an employer’s personal liability is tied
up with his employees’ safety, he has a
personal interest in providing a safe
environment for them.
› An employer is not able to simply place a
barrier between themselves and law by
employing someone else to take on their
safety responsibilities.
Wilsons Case
› Theauthority for this duty can be
found Wilsons & Clyde Co Ltd v
English [1938] AC 57

› The claimant was killed in an accident

whilst carrying out maintenance work
in the defendant’s mine. The
claimant’s family the sued the mine
owners.
Wilsons Case
› The mine owners argued that they had
entrusted the safe running of the mine
to another employee, and that the
failure to do so was that employee’s
responsibility. The courts rejected this
argument and held the mine owners
liable on the basis of their duty to
provide a safe working environment.
Wilsons Case
› The bench identified the elements of a safe working
environment which must be provided.
› Firstly, safe premises must be provided in a safe
location.
› Secondly, employees must be provided with safe plant
(or machinery), materials and equipment.
› Thirdly, a safe system of work must be provided and
safe working practices observed.
› Fourthly, employers must provide competent staff as
colleagues to any given employee.
2. Safe Place of Work

› In order for a place of employment to be

considered safe, it must include safe premises
in a safe working environment. These two
things must coincide –

› the world’s most structurally sound building

could not be considered safe if it was located
on the edge of a volcano.
Safe Place of Work

› Similarly, going to work each day in an

extremely safe location would not be much
good if your office building was
constructed from leaky petrol barrels and
lit by naked flames.
Safe Place of Work
› The standard which must be met is that of the
‘reasonably prudent employer’. The application of
this principle can be seen in Latimer v AEC
Ltd[1953] AC 643
Facts; In brief, the employer’s factory floor
became dangerously slippery after it was
flooded by unusually heavy rainfall.
Although the employer provided sawdust to
put down to negate the danger,
Safe Place of Work
not enough was provided to cover the entire
floor. An employee slipped and was injured.
It was held that the employer had acted with
reasonable prudence (it was only the
extraordinary weather which led to flooding, so
there was no usual need to provide an entire
factory’s worth of sawdust.) Since the employer
had taken reasonable steps to protect against
the risk, its duty was discharged, and the claim
therefore failed.
Safe Place of Work
› The duty to provide a safe place of work extends to
employees tasked to work off-site, a place not controlled
by their employer. Employees enjoy a similar level of
protection as those who work in the same location every
day. See Wilson v Tyneside Window Cleaning Co. [1958] 2
QB 110

Facts – the claimant was employed by the defendant as a

window cleaner. When out on a job, the claimant fell and
injured himself due to the unsafe state of the client’s
premises.
Safe Place of Work
› The claimant argued that this meant that his
employers had exposed him to an unnecessary
risk. Whilst the claim in this failed (because his
employers had fulfilled their duty despite the
accident) the court held that employers still owe a
duty of care to employees even when they are
working outside of their employer’s premises.
Safe Place of Work
› This duty will be heightened if the employer is
aware of a particular off-site hazard (most
likely because it has been encountered by an
employee before.) This was the case
in General Cleaning Contractors v
Christmas [1954] AC 180. A window cleaner
(Christmas) was working on the outside of a
building, balancing on a window sill and using
the bottom half of a sash window for balance.
Safe Place of Work
› The window slipped and closed, crushing the
cleaner’s fingers, causing him to lose his balance
and fall. The employer was held liable
NB:
› Employers would be expected to take a more
proactive approach to off-site safety, Cook v
Square D Ltd [1992] ICR 262 provides a concise
(but non-exhaustive) list of factors which an
employer must consider when ascertaining the
safety of any given workplace.
3. Safe Equipment (and
Materials)

› An employer must provide equipment and

materials which are safe and properly
maintained.
› the material supplied will be of a high-enough
quality to avoid unnecessary risk. See Knowles v
Liverpool County Council [1993] 1 WLR 1428
Safe Equipment (and
Materials)
› This reflects the non-delegable nature of
employer’s liability – just as an employer cannot
claim that they employed somebody else to deal
with workplace safety as a defence, they cannot
claim as a defence that somebody else manufactured
the equipment their employees are using.
4. Safe System of Work
› It is not enough to spend money on the
best premises, the most up-to-date
equipment, and to employ only the most
qualified staff but also to create
comprehensive system of working which
ensures safety at all times.
Safe System of Work
› Speed v Thomas Swift & Co Ltd [1943] 1 KB 557

› The claimant employee was injured during the

loading of a ship. It emerged that there were a
number of issues with the system of work in
place, and furthermore that the system was
unsuitable for use on the particular type of ship
the claimant was working on at the time of the
injury.
Safe System of Work
› The court identified four different features of any
given system of work which should be considered
by employers: the physical layout of the job, the
sequence in which work is carried out, the
provision of warnings and notices of particular
dangers, including special instructions where
necessary, and finally the need to improve the
system as necessary, or modify it to deal with
particular circumstances
Safe System of Work
NB:
› If a particular risk has manifested itself, an
employer will be mandated to take
preventative action. This was the case
in Rahman v Arearose Ltd [2001] QB 351.
Safe System of Work
› The duty to provide a safe system of working
extends to protecting the mental health of
employees. This is illustrated in Walker v
Northumberland County Council [1995] 1 All ER 737.
The claimant worked in a busy social services
department, and despite requesting additional
support from his employers, this was not provided
Safe System of Work
› . . As a result the claimant had a mental
breakdown, and sued his employer on the basis
that they had breached their duty of care. This
claim succeeded – it was held that there was no
reason why an employer’s duty to provide a safe
system of work did not extend to preventing
psychiatric harm.
5. Competent Staff
› Finally, employers must provide competent colleagues
for their employees – a safe working environment is little
use if a fellow employee brandishes equipment
dangerously, or fails to observe safety protocol.
› There are also situations in which only the employer’s
duty is relevant, when an employee has acted poorly, but
outside of the remit of their duties.
Competent Staff
› This was the situation in Hudson v Ridge
Manufacturing Co Ltd [1957] 2 QB 348. The
claimant was injured when a colleague
decided to wrestle him to the ground in a
prank. This resulted in the claimant breaking
his wrist.
Competent Staff
› The claimant’s employer had been aware of
the prankster’s inappropriate behaviour for
years at that point, but had done nothing to
prevent his actions. The employer was thus
held liable – their failure to deal with the
prankster constituted a failure to provide a
safe workplace for the claimant
Points to Note
› The Imposition of a Duty of Care Must Be Fair,
Just and Reasonable
› The Duty Does Not Apply to Independent
Contractors

› NB:
› Nzarirehe v. Kagabaire (19968) EA 177
Duties which are covered by
statute
› Most of the duties were covered by
common and most of them have now been
legislated.
› In Tanzania, we had The factories
(Ordinance) ( then Act) (Cap 297) now
repealed by The Occupational Health and
Safety Act, 2003 act No 5/2003
Duties which are covered by
statute
› “An Act to repeal the Factories Ordinance; to
make provisions for the safety, health and welfare
of persons at work in factories and other places of
work- to provide for the protection of persons
other than persons at work against hazards to
health and safety arising out of or in connection
with activities of persons at work; and to provide
for connected matters’
Duties which are covered by
statute
› Part IV deals with Safety i.e section 24 to 53 of the
act.
› See section 25 of the Act duty to fence prime
mover
› Section 30 – safety on cleaning machinery
› Section 39 – safety of cranes and other lifting
machines
› Section 43 – duty to safe working place
Duties which are covered by
statute
› Part V deals with health and welfare from section
54 to 59
› Section 54 – duty to supply clean drinking water
› Section 56 – duty to supply washing facilities

› NB: other duties provided by other sections of the

act
Duties which are covered by
statute

›THE END