Employers' liability and non-delegable duties

Initially here we looked at the employer’s legal responsibility for the health and safety of his employees. This must be distinguished from vicarious liability, under which an employer may be liable for a tort committed by his employee in the course of employment. The employer is also under a personal non-delegable duty of care to take steps to ensure the safety of his employees in the workplace. The source of this duty lies both in the common law and in statute; these duties exist concurrently with a good deal of overlap, but also differences.

Wilsons and Clyde Coal v English, in 1938, is the key case which sets out the nature of the employer’s common law duty of care: to provide competent staff, adequate plant and materials and a proper system of working. To this can be added: a safe place of work.

The non-delegable nature of the duty is illustrated by McDermid v Nash Dredging. An employer is not normally liable for the torts of an independent contractor, but the non-delegable duty is to ensure that care is taken. Therefore, if the independent contractor is acting under the explicit instructions of the employer or if the employer is aware of the tort of the independent contractor, a duty of care may arise. We have seen that non-delegable duties of care are inconsistent with the fault-based principles in negligence, but Woodland v Essex County Council, the Supreme Court ruled that in exceptional cases where it is fair, just, and reasonable to protect those who are inherently vulnerable such duties would be imposed.

In the 21st century, the employer’s responsibility for the psychological health of his employees has been reflected and developed in occupational stress cases such as Hatton v Sutherland and Barber v Somerset. Such liability must be distinguished from the ‘nervous shock’ cases covered in Chapter 6.

Alongside the common law provisions, a number of statutes such as the Health and Safety at Work Act 1974 and the Employers’ Liability (Defective Equipment) Act 1969 were introduced to protect employees and, in certain circumstances, breach of these statutory duties can give rise to a claim in tort. Historically, where an employee established a breach of statutory duty, the burden of proof was shifted to the employer to show that due care had been exercised in order to avoid liability. However, changes introduced by the Enterprise and Regulatory Reform Act 2013 removed the presumption of this reversal in burden of proof, so beneficial to the claimant.

When looking at employers’ liability to their employees it is important to note that a duty may arise under the law of contract. Employment contracts contain an implied term that an employer will take all reasonable care to ensure the health and safety of his employees.