Employers' primary liability - Duty to provide a safe system of work with adequate supervision

Learning Outcomes

This article details the employer's primary duty of care regarding the provision of a safe system of work, including the necessity for adequate supervision. For the SQE1 assessment, you must understand the scope and non-delegable nature of this duty, its key components, and the standard of care expected from a reasonable employer. Comprehending these principles will allow you to identify relevant legal issues and apply them effectively to multiple-choice questions concerning employers' liability in tort.

SQE1 Syllabus

For SQE1, you are required to understand the employer's primary liability duties at common law. This includes the duty to provide a safe system of work and adequate supervision. Your revision should focus on:

• 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.

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.

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.

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.

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.
• 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.
• Warnings: Providing clear warnings about potential hazards associated with the work or workplace.
• Provision and Maintenance of Equipment: Ensuring tools, machinery, and personal protective equipment (PPE) are suitable, safe, and properly maintained.
• Supervision: Implementing adequate oversight to ensure the safe system is followed (see below).

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.

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.

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 require more stringent supervision.
• 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.
• Competence of Supervisors: Supervisors themselves must be competent, properly trained in safety procedures, and possess the authority to enforce them.
• Monitoring and Enforcement: Regular checks and enforcement mechanisms are needed to ensure compliance. An employer who is aware that safety rules are being ignored but fails to take action may be in breach.

Worked Example 1.2

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.

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, training, warnings, equipment maintenance, and effective oversight. The standard is that of the reasonable employer, balancing risk against the practicality of precautions. 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, training, warnings, safe equipment, and workplace layout.
• The duty also requires providing adequate supervision to ensure the system is followed.
• The level of supervision needed varies with the risk and employee experience.
• The standard of care is that of the reasonable employer in the circumstances.
• Compliance with common practice is relevant but not conclusive proof of meeting the standard.
• Failure in this duty can lead to primary liability in negligence.

Key Terms and Concepts

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