Health and Safety at Work and the duty of an Employer

It is well-established that an employer has a common law and a statutory duty to ensure the there is the existence of a safe working environment and a safe system of working. The employer is required to take reasonable steps for the health and safety of his/her employees but "the employer’s duty of care does not warrant the safety of the employee’s employment. The employer undertakes only to take reasonable precautions to protect the employee against accidents".

The common law duty owed to a employee by his employer, which is non-delegable was laid down by Lord Wright in the seminal decision of in Wilson & Clyde Coal Co Ltd v English, following the death of an employee due to the negligence of his employer. The court prescribed a four pronged remedy to ensure that employers provide a safe working environment for all employees; They are as follows;

(1) a competent staff of men;

(2) adequate plant and equipment;

(3) a safe system of working, with effective supervision; and

(4) a safe place of work.

The duty to take reasonable care for the safety of an employee is also an implied term in the contract of employment. Case law has exemplified that an employer may be held liable for his/her failure to investigate and address health and safety concerns intimated to them by their employee. Black's Law Dictionary defines a “safe workplace” as “a place of employment in which all dangers that should reasonably be removed have been removed; a place of employment that is reasonably safe given the nature of the work performed”. In Lightbourne v Carnival's Crystal Palace Hotel Corp, Osadabey J in citing with approval the English authority of Smith vs. Baker, agreed with Lord Herschell that there is a common law duty to provide employees with a safe work environment and a safe system of work and:

"The duty of an employer towards his servant is to take reasonable care for the servant's safety in all the circumstances of the case. It has also been described as 'the duty of taking reasonable care ... so to carry on his operations as not to subject those employed by him to unnecessary risk".

The statutory duty is codified in statute, according to the Bahamas' Health and Safety at Work Act section 4 (1), which states that "it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees".

"4(e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work".

"5. (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety".

Pursuant to section 22, every employer with twenty or more employees are required to have a Health and Safety committee and states that;

" At every place of employment where twenty or more persons are employed, the employer shall cause a committee to be established to be known as a health and safety committee in accordance with regulations made under this Act. The duty of committee is to make recommendations for health and safety all employees and is extended to customers who frequent the business".

Self employed individuals are not exempted from this duty as section 5(2) makes provisions for self-employed persons to also ensure a safe system of work for persons affected or in close proximity to their work;

5(2) "It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety".

Conversely, there is a reciprocal duty on the employee to take reasonable care for his/her own safety. In a noted case Charles J intimated that "the mere fact that an injury is sustained by a person on the premises of another, even in the work place, does not, without more, establish negligence. Each person while performing his duty as an employee has to assume a measure of responsibility for his own safety and has to be alert to hazards which exist in the workplace"

Notwithstanding this, the HR Manager must investigate, document, and address all health and safety concerns immediately to discharge the duty placed on the employer. Failure to do so can cause an employee to resign and claim constructive dismissal and also seek damages against the employer in negligence under common law. This is exemplified in the landmark English case of British Aircraft Corporation Ltd v. Austin:

The facts:

Mrs. Austin terminated her employment with the appellant company on 17.5.77. The events leading up to her termination began in August 1976 when it became necessary for Mrs. Austin and her fellow employees to wear eye protectors when performing their work. Mrs. Austin was provided with goggles but, as she had to wear spectacles, she did not find the goggles suitable. She complained to the management and in November, the safety officer looked into the matter. He decided to approach the management to see whether they would pay for special eye protectors fitted with Mrs. Austin's prescription lenses. Mrs. Austin heard nothing more about the matter and in May 1977 decided that she was left with no alternative but to resign. An Industrial Tribunal decided that Mrs. Austin's termination amounted to a constructive dismissal within the meaning of para. 5(2)(c) of Schedule 1 to the Trade Union and Labour Relations Act.

The EAT held:

The company's failure to investigate the respondent employee's complaint about the protective eye wear provided, amounted to conduct which entitled the employee to resign without notice within the meaning of para. 5(2)(c) of Schedule 1 to the Trade Union and Labour Relations Act.

Further the court intimated that;

"Employers are under a duty to take reasonable care for the safety of their employees. As part and parcel of that general obligation, employers are also under an obligation under the terms of the contract of employment to act reasonably in dealing with matters of safety or complaints of lack of safety which are drawn to their attention by employees. Unless the matter drawn to their attention or the complaint is obviously not bona fide or is frivolous, it is only by investigating individual complaints promptly and sensibly that employers can discharge their general obligation to take reasonable care for the safety of their employees. ... the appellants' conduct in failing to investigate the respondent's complaint about eye protectors, could be said to amount to a fundamental breach of her contract of employment. It was a breach going to the root of the contract or one which showed that the employer no longer intended to be bound by an essential term of the contract because it put the respondent in a wholly unfair dilemma: either she had to carry on where she was with no prospect of anything being done about her complaints with, as she saw it in those circumstances, a risk to her health in the shape of her eyesight; or she would be obliged to give up her job with all the difficulties and uncertainties of finding another"

An employer has a fundamental duty not only to provide a safe system of work by ensuring that the necessary safeguards are put in place to prevent accidents but also to ensure that all employees are protected from other employees in cases of sexual harassment, bullying inclusive of cyber bullying. Employers that fail to take action to protect their employees from workplace bullying and harassment could be sued for negligence or held vicariously liable. In Green (claimant) v. DB Group Services (UK) Ltd, the court found the defendant vicariously liable after the plaintiff was subjected to constant bullying and harassment by a group of female co-workers which resulted in her suffering from two episodes of a major depressive disorder. The claimant complained to her manager about the harassment and bullying however, nothing was done, further the court held that the line managers had known or ought to have known about the bullying as it was a longstanding problem plaguing the department and there was a culture of harassment known to the employer. There was a foreseeable risk of psychiatric injury and the employer failed to guard against such risk by reducing or eliminating it, therefore, the claimant was successful in her claim for damages. Sexual harassment and bullying in some instances go hand in hand especially for female employees and if not addressed can be costly to the employer. This was established in Mathews v Winslow Constructors (Vic) Pty Ltd, a recent decision by The Supreme Court of Victoria in Australia, where it awarded $1.3 million in compensation to a former road construction worker. The plaintiff, Kate Matthews was sexually harassed and verbally abused during her engagement with a civil engineering company for two years by her co-workers and sub-contractors. During her tenure she was slapped on her butt, shown porn, called names such as a "bimbo" and was subjected to sexists comments such as "anything that bleeds once a month should be shot”. She complained to her supervisors but was ridiculed as one of her perpetrators was also her supervisor. She was left with no choice but to resign and later sued her employer. The court held that the employer had failed to provide a safe working environment especially in a male dominated environment. The claim was successful under general negligence via personal injury as she suffered from psychiatric illnesses brought on by the ordeal from post-traumatic stress disorder and anxiety inter alia. The health and safety of all employees including management should be paramount therefore policies should always be in place to address these problems to ensure the subsistence of a safe working environment as mandated by statute and common law.

In conclusion, an employer’s duty to provide a safe working environment is a cornerstone of both common law and statutory obligations. This duty is non-delegable and requires employers to maintain competent staff, adequate equipment, a safe system of work, and a secure workplace. Employees, in turn, have a reciprocal responsibility to take reasonable care for their own safety, reinforcing the shared commitment to workplace well-being. Failure to address workplace hazards, including those reported by employees, can result in serious legal consequences, including claims of negligence and constructive dismissal. Employers must actively investigate and rectify safety concerns, including those related to physical risks, harassment, and bullying, to prevent potential liability. A failure to act not only compromises employee welfare but also exposes organizations to reputational and financial risks.

Ultimately, ensuring workplace safety is not merely a legal requirement but a fundamental component of effective human resource management. By fostering a proactive culture of health and safety, implementing comprehensive policies, and addressing concerns promptly, employers can protect their workforce, enhance productivity, and maintain compliance with legal and ethical standards.