Employers' primary liability - Duty to provide a safe system...

Learning Outcomes

This article details the employer's primary duty of care regarding the provision of a safe system of work and the necessity for adequate supervision, including:

• Personal and non-delegable nature of the duty, even where tasks are implemented by managers or independent contractors
• Components of a 'safe system of work': planning and sequencing of tasks, instructions and training, warnings, method statements and permits, supervision and monitoring, and review and modification when circumstances change
• Criteria for 'adequate supervision': risk level, worker competence and experience, known behaviours, and the authority and competence of supervisors
• The reasonable employer standard for breach, including balancing risk likelihood and gravity against practicability and cost of precautions, and considering state of knowledge and common practice
• Safe systems addressing foreseeable risks of psychiatric injury from work-related stress and the principles governing employer responses
• Distinction between primary liability for unsafe systems or supervision and vicarious liability, and links to causation and partial defences such as contributory negligence

SQE1 Syllabus

For SQE1, you are required to understand the employer's primary liability duties at common law, including the duty to provide a safe system of work and adequate supervision, with a focus on the following syllabus points:

• The nature and extent of the employer's non-delegable duty of care.
• The components constituting a 'safe system of work', such as planning, training, warnings, and the provision and maintenance of safe equipment and premises.
• The requirement for 'adequate supervision', including the monitoring of employees and competence of supervisors.
• The standard of care expected from a reasonable employer in fulfilling these duties.
• How these duties interact with the overall principles of negligence, specifically breach of duty and causation.
• Application of the duty across different work locations, including work undertaken on third-party premises and with independent contractors, and the effect of engaging others on the employer’s personal duty.
• When and how a safe system should address foreseeable risks of psychiatric injury from stress at work and the factors courts consider regarding foreseeability and reasonable steps.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which legal principle establishes that an employer cannot delegate their fundamental duty to ensure employee safety?
   1. Vicarious liability
   2. Contributory negligence
   3. Non-delegable duty
   4. Res ipsa loquitur
2. Providing a safe system of work involves several elements. Which of the following is LEAST likely to be considered part of establishing a safe system?
   1. Providing comprehensive training on safety procedures.
   2. Ensuring equipment is regularly maintained and inspected.
   3. Offering employees private health insurance.
   4. Designing a safe layout for the workplace.

3. True or False: The level of supervision required depends solely on the employee's experience level, with less experienced employees requiring more supervision.

4. An employer implements a safety system widely used in their industry. An employee is injured due to a flaw in that system not previously identified by the industry. Is the employer automatically absolved from liability for breach of duty?
   1. Yes, following industry standards is sufficient.
   2. No, compliance with common practice is relevant but not conclusive; the employer must still meet the standard of a reasonable employer.
   3. Yes, unless the employee specifically requested additional safety measures.
   4. No, because the duty is non-delegable.

Introduction

Beyond vicarious liability for the torts committed by employees, employers owe direct, primary duties to their employees under common law. A fundamental aspect of this is the duty to take reasonable care for the employee's safety, which includes establishing and maintaining a safe system of work, supported by adequate supervision. This duty is personal to the employer and cannot be delegated to others, even competent independent contractors. Understanding the scope and application of this duty is essential for answering SQE1 questions relating to employers' liability in negligence.

Key Term: Non-delegable duty
A legal obligation that cannot be outsourced or transferred to another party. The person owing the duty remains liable even if they hire a competent person to perform the task associated with the duty.

Failure to fulfil any aspect of this duty can lead to primary liability in negligence if an employee suffers injury as a result, provided the standard requirements of breach, causation, and damage are met. The common law components of the employer’s duty were classically identified in Wilsons & Clyde Coal Co Ltd v English: providing competent staff, adequate plant and equipment, a safe place of work, and—central to this article—a safe system of work with adequate supervision. Later authority emphasises that the duty is personal and persists even where day-to-day control is exercised by others (for example, McDermid v Nash Dredging).

The Non-Delegable Duty

The basis of an employer's primary liability is the non-delegable duty of care owed to each employee. This means the employer is personally responsible for ensuring the safety measures are in place and effective, even if the day-to-day implementation is handled by managers, supervisors, or external experts. Landmark case law (Wilsons & Clyde Coal Co Ltd v English) established the core components of this duty, which include providing competent staff, adequate plant and equipment, a safe place of work, and, pertinently for this article, a safe system of work with adequate supervision.

Key Term: Non-delegable duty
A legal obligation that cannot be outsourced or transferred to another party. The person owing the duty remains liable even if they hire a competent person to perform the task associated with the duty.

This personal duty operates across all work contexts, including where employees work on third-party premises or under the direction of another organisation. The employer must ensure a safe system exists and is implemented for the work its employees undertake, even if the system is devised or controlled by someone else (McDermid v Nash Dredging). Engaging a reputable contractor to install equipment does not absolve the employer of its duty to see that reasonable care is taken; the employer must take reasonable steps to check competence and, proportionate to complexity, monitor that the work is properly done.

Non-delegability also underlines why simply following industry custom does not end the inquiry. Common practice is relevant evidence but not determinative: if a whole practice is unsafe, adhering to it will not shield an employer whose system falls below that of the reasonable and prudent employer.

Safe System of Work

Providing a safe system of work extends beyond merely providing safe equipment or premises. It encompasses the overall organisation and execution of work processes, including planning, training, warnings, and the implementation of safety procedures.

Key Term: Safe system of work
The overall process and method by which work is carried out, designed to ensure the safety of employees. This includes planning, training, instruction, warnings, supervision, and the layout of the job.

The employer must consider the nature of the work and the potential risks involved. What constitutes a safe system is a question of fact in each case, judged against the standard of the reasonable employer. Key elements include:

• Planning and Organisation: Devising safe methods for carrying out tasks, including the sequence of operations and layout of the work environment. Safe sequencing matters particularly where activities interact (e.g., loading, cleaning, or maintenance around moving machinery). A safe system should include method statements, permits-to-work, lockout/tagout protocols for isolating energy sources, and coordination procedures where multiple teams share a space. Where circumstances change (e.g., new equipment, altered workflow, unusual weather conditions), a safe system should be reviewed and modified to maintain safety. Courts have emphasised the need to adjust instructions and systems when the job changes or special circumstances arise (as in Speed v Thomas Swift & Co).
• Training and Instruction: Ensuring employees receive adequate training on how to perform their tasks safely, including the use of equipment and adherence to safety protocols. This includes initial training, refresher training, and additional instruction when processes or equipment change. Competence should be assessed, not assumed, and cannot be inferred solely from attendance at a briefing. Training must be comprehensible to the workforce and reinforced through supervision and audits (General Cleaning Contractors v Christmas underlines the importance of instruction and supervision in safe methods).
• Warnings: Providing clear warnings about potential hazards associated with the work or workplace. Warnings cover signage and oral/written instructions and should address both routine and non-routine risks (e.g., maintenance hazards, falls from height, hazardous substances, confined spaces). Warnings are not a substitute for safe methods but are an essential part of a system that keeps workers reasonably safe.
• Provision and Maintenance of Equipment: Ensuring tools, machinery, and personal protective equipment (PPE) are suitable, safe, and properly maintained. The safe system includes planning for PPE adequacy, fit, and compatibility with tasks, as well as maintenance regimes and inspection schedules. While defective equipment liability may be influenced by statute (e.g., the Employer’s Liability (Defective Equipment) Act 1969), the system of work must contemplate how equipment will be used, guarded and isolated, and how defects will be reported and addressed promptly.
• Supervision: Implementing adequate oversight to ensure the safe system is followed (see below). Supervision is part of the system and must be matched to risk, task complexity, and worker competence.

A safe system is not static. Reasonable employers ensure systems are reviewed periodically and in response to incidents, near misses, or changes in process, environment, or workforce. Written procedures need to be supported by effective implementation: practice must align with paper. Failure to ensure the system operates on the shopfloor can amount to breach even where the documented system appears sound.

Worked Example 1.1

An employee in a factory is injured when using a complex machine. The employer provided a detailed written manual but no practical training or demonstration. The employee misinterpreted a step in the manual, leading to the accident. Has the employer potentially breached its duty to provide a safe system of work?

Answer:
Yes, potentially. Providing only a written manual for a complex machine may not constitute adequate training and instruction, which is a key part of a safe system of work. A reasonable employer might be expected to provide practical demonstrations and assess competency. Failure to do so could amount to a breach of duty.

Worked Example 1.2

A maintenance engineer is asked to clear a jam in a conveyor. The employer has a general handbook instructing staff to be “cautious” and “switch off where possible”, but there is no lockout/tagout procedure, no permit-to-work for maintenance, and no defined isolation points identified on the equipment. While clearing the jam, the machine restarts and injures the engineer. Is there likely a breach of the duty to provide a safe system of work?

Answer:
Yes. A reasonable employer devises a task-specific method for maintenance that includes isolations, permits, and lockout/tagout. Vague directions are inadequate where a known risk of unexpected start-up exists. The absence of defined isolation and a permit system strongly indicates the system fell below the required standard.

Standard of Care

The standard expected is that of the reasonable and prudent employer in the circumstances. This involves balancing the magnitude of the risk (likelihood and severity of harm) against the cost and practicability of precautions. Following common industry practice is relevant evidence but not conclusive; a court may find an entire industry practice to be negligent. Familiar factors include:

• Likelihood of harm: The more probable harm is, the more precautions are expected (Bolton v Stone shows low likelihood may warrant fewer measures; in work contexts even infrequent but foreseeable risks tied to hazardous operations often justify robust controls).
• Seriousness of injury: The more serious the potential injury, the more precautions are required (Paris v Stepney Borough Council emphasises the need to account for particular vulnerability and potential gravity of harm).
• Cost and practicability of precautions: Reasonableness considers proportionality; shutting an entire operation may be disproportionate where effective, lower-cost steps suffice (as in Latimer v AEC Ltd), but cost does not excuse omission where risk is substantial and measures are practical.
• State of knowledge: Standards are judged by knowledge reasonably available at the time (Roe v Minister of Health indicates that unforeseeable defects cannot found breach; employers must keep pace with reasonably current safety knowledge).
• Social value/emergency: In rare cases where social utility is pressing and immediate (Watt v Hertfordshire County Council), the law may accept increased risk; in routine industrial operations, this factor seldom reduces required controls.

On evidence, courts will examine whether written systems matched practice, what training was given, and how supervision enforced the rules. Compliance with internal policies or standard operating procedures is not determinative if those procedures were themselves inadequate or not implemented.

Exam Warning

Do not confuse the employer's primary duty to provide a safe system with vicarious liability. Primary liability arises from the employer's own failure to meet its duty of care, whereas vicarious liability arises from a tort committed by an employee. An employer can be liable under both heads concurrently.

Adequate Supervision

A safe system of work requires not only its establishment but also its effective implementation and enforcement through adequate supervision. Supervision ensures that employees understand and follow safety procedures and that unsafe practices are identified and corrected.

Key Term: Adequate supervision
Sufficient oversight by competent personnel to ensure employees follow safe working practices and procedures are implemented effectively. The level required varies with the risk involved and employee experience.

What constitutes 'adequate' supervision depends on the circumstances, including:

• Nature of the Work: Higher-risk activities (e.g., work at height, confined space entry, live electrical work, heavy machinery maintenance) require more stringent supervision. High-risk work often calls for direct, on-site supervision during critical operations and verification of permits, isolations, and protective measures.
• Experience of Employees: Trainees or inexperienced workers typically need closer supervision than experienced staff. However, even experienced staff may require supervision for high-risk tasks or if known to disregard safety rules. Where management knows or ought to know that “horseplay” or rule-breaking is common, greater supervision and disciplinary enforcement are required (Hudson v Ridge Manufacturing Co Ltd).
• Competence of Supervisors: Supervisors themselves must be competent, trained, and empowered. They should have the authority to halt unsafe work, enforce rules, and escalate issues. A nominal supervisor without authority or time to supervise will rarely suffice.
• Monitoring and Enforcement: Regular checks, audits, and on-the-spot interventions are part of adequate supervision. The employer should demonstrate enforcement—e.g., documented corrective actions, refresher training, and disciplinary measures where appropriate. Awareness that safety rules are being ignored but failure to take action may amount to breach.

Supervision includes planning oversight (ensuring method statements are followed), operational oversight (observing the work and intervening), and post-work review (capturing lessons learned, near misses, and improvements). Where work is undertaken on third-party premises, the employer still must ensure supervision arrangements appropriate to the risk; this may involve agreeing oversight protocols with the host, but the personal duty remains with the employer.

Worked Example 1.3

A construction company employs several apprentices on a busy site. The site manager gives them initial safety instructions but rarely checks on them during the day, assuming the experienced workers will guide them. An apprentice, unsure of the correct procedure for using a particular tool, uses it incorrectly and injures themselves. Has the employer potentially breached its duty regarding supervision?

Answer:
Yes. Providing initial instructions may not be sufficient supervision for inexperienced apprentices, especially on a high-risk construction site. A reasonable employer would likely ensure more direct and regular oversight by a competent supervisor to monitor compliance and provide guidance, particularly given the known risks and the apprentices' lack of experience. Failure to provide this level of supervision could constitute a breach.

Worked Example 1.4

A skilled technician with years of service has a habit of bypassing machine guards to “speed up” production. Supervisors are aware of this custom but rely on informal warnings. The technician is injured when his hand enters an unguarded nip point. Does adequate supervision require more than informal warnings in this scenario?

Answer:
Yes. Where supervisors are aware of persistent unsafe practices that carry severe risk, adequate supervision entails active monitoring and enforcement. The reasonable employer would expect supervisors to intervene decisively—e.g., pausing work, retraining, disciplinary action, or engineering controls—and to verify ongoing compliance. Persisting unsafe habits known to management without effective enforcement suggest breach.

Stress at Work within Safe Systems and Supervision

The duty to provide a safe system of work can extend to foreseeable risks of psychiatric injury caused by stress at work. Where injury to health through stress is reasonably foreseeable (for example, because of prior illness, complaints, or workload indicators), employers should take reasonable steps to respond. This is not a general duty to eliminate stress but a duty to act where there are indications that an employee faces a risk of injury. Courts consider factors such as the nature and extent of the work, signs from the employee, available support, and whether reasonable adjustments were made (as highlighted by Walker v Northumberland County Council and subsequent guidance in Hatton v Sutherland, approved in Barber v Somerset County Council).

Reasonable steps may include modifying workload, providing additional help or supervision, altering duties temporarily, or offering support resources. The focus remains on foreseeable risk of injury to health and reasonable measures; mere job dissatisfaction or normal pressures do not engage liability.

Worked Example 1.5

A case-handler suffers a stress-related breakdown. He returns to work and informs his line manager that his caseload needs to be reduced. The employer initially reallocates files, but within weeks the workload returns to previous levels, and he suffers a second breakdown. Is there likely to be a breach of the safe system/supervision duty?

Answer:
Potentially, yes. A second breakdown following prior warning signs can make psychiatric injury reasonably foreseeable. The reasonable employer would maintain reduced workload, monitor well-being, and provide ongoing adjustments or support. Allowing workload to revert without review or support may indicate the system and supervision were not reasonably safe for that employee.

Revision Tip

When analysing a problem question, look for facts indicating the level of risk, the experience of the employee(s) involved, and what steps (or lack thereof) the employer took to oversee the work. Was the supervision provided appropriate for the specific context?

Summary

The employer's duty to provide a safe system of work with adequate supervision is a fundamental, non-delegable aspect of their primary duty of care. It requires a proactive and comprehensive approach to workplace safety, encompassing planning and sequencing, training and instructions, warnings, suitable equipment, and effective oversight. The system must be adjusted to changing circumstances and implemented in practice via competent supervision that monitors, enforces, and improves safety performance. The standard is that of the reasonable employer, balancing risk against the practicality of precautions, judged by the state of knowledge at the time. Following industry custom is relevant but not determinative. The duty applies across locations and arrangements, including work on third-party sites and where independent contractors are engaged, and extends to foreseeable risks of psychiatric injury from stress at work where injury is reasonably foreseeable. Failure to meet this standard can result in liability in negligence if an employee suffers injury as a consequence.

Key Point Checklist

This article has covered the following key knowledge points:

• Employers owe a personal, non-delegable duty of care to employees.
• This duty includes providing a safe system of work.
• A safe system involves planning and sequencing, task-specific method statements, permits, training, instructions, warnings, safe equipment use, and workplace layout matched to risk.
• The duty also requires providing adequate supervision to ensure the system is followed.
• Adequate supervision is risk-based and includes monitoring, enforcement, and competent, empowered supervisors.
• The duty is personal even when tasks are performed on third-party premises or by independent contractors; the employer must still take reasonable steps to ensure safety.
• The level of supervision needed varies with the risk and employee experience, and increases where management is aware of persistent unsafe practices.
• The reasonable employer standard balances risk likelihood and gravity against cost and practicability, considering state of knowledge and that industry practice is relevant but not conclusive.
• The safe system duty can extend to foreseeable risks of psychiatric injury from stress at work, requiring reasonable steps where injury is reasonably foreseeable.
• Failure in this duty can lead to primary liability in negligence.

Key Terms and Concepts

• Non-delegable duty
• Safe system of work
• Adequate supervision