Employers' primary liability - Duty to provide a safe workplace

Learning Outcomes

After reading this article, you will be able to explain the scope of an employer’s primary liability to provide a safe workplace under English law. You will understand the core common law duties, the meaning of a non-delegable duty, and how statutory standards influence the standard of care. You will be able to apply these principles to SQE1-style scenarios and identify when an employer may be liable for workplace injuries.

SQE1 Syllabus

For SQE1, you are required to understand the employer’s duty to provide a safe workplace in practical terms. Focus your revision on:

• the common law duty of care owed by employers to employees regarding workplace safety
• the four core elements of the employer’s duty: safe premises, safe plant/equipment, safe system of work, and competent staff
• the concept and consequences of a non-delegable duty
• the interaction between statutory health and safety requirements and the common law standard of care
• how to identify and apply these principles in workplace injury scenarios

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. What are the four main aspects of an employer’s common law duty to provide a safe workplace?
2. True or false? An employer can avoid liability for workplace injuries by delegating safety tasks to an independent contractor.
3. Which statutory act is the primary source of workplace safety obligations in England and Wales?
4. In what circumstances will compliance with statutory health and safety regulations be enough to avoid liability in negligence?

Introduction

Employers in England and Wales owe a primary duty to take reasonable care for the safety of their employees at work. This duty is both a common law obligation and is reinforced by statutory requirements. For SQE1, you must be able to identify the scope of this duty, explain its non-delegable nature, and apply it to practical scenarios involving workplace accidents or injuries.

Key Term: employer’s primary liability
The personal, non-delegable duty of an employer to take reasonable care for the safety of each employee at work.

Key Term: non-delegable duty
A duty that cannot be avoided by appointing others to perform it; the employer remains responsible even if tasks are delegated.

Key Term: safe system of work
The organisation, supervision, and method of carrying out work so as to minimise risks to employees’ health and safety.

Key Term: statutory standard
A safety requirement imposed by legislation or regulations, often used as a benchmark for the standard of care in negligence.

The Common Law Duty to Provide a Safe Workplace

Employers owe a personal duty of care to each employee. This duty is non-delegable: the employer cannot escape liability by appointing others to perform safety-related tasks.

The classic authority is Wilsons & Clyde Coal Co Ltd v English, where the House of Lords confirmed that the employer’s duty is to take reasonable care for the safety of employees in all circumstances of their employment.

The duty is commonly broken down into four main aspects:

• providing safe premises and a safe place of work
• providing safe plant, materials, and equipment
• providing a safe system of work (including supervision and instructions)
• providing competent staff

Safe Premises

Employers must ensure that the workplace is physically safe. This includes maintaining the structure, lighting, ventilation, and addressing hazards such as slippery floors or unsafe walkways.

Safe Plant and Equipment

Employers must provide and maintain equipment and machinery that is safe and suitable for use. This includes regular inspection, maintenance, and provision of necessary safety devices.

Safe System of Work

Employers must organise work in a way that minimises risks. This covers the planning of tasks, supervision, instructions, and adapting procedures to changing circumstances.

Competent Staff

Employers must recruit and retain staff who are competent and adequately trained. They must also supervise employees and address any known risks posed by particular individuals.

The Non-Delegable Nature of the Duty

The employer’s duty is personal and non-delegable. Even if an employer appoints a manager, supervisor, or independent contractor to carry out safety tasks, the employer remains liable if reasonable care is not taken.

Exam Warning
For SQE1, remember: an employer cannot avoid liability for workplace injuries by arguing that safety was delegated to another employee or an outside contractor. The duty is non-delegable.

Worked Example 1.1

Scenario:
A factory owner hires an independent contractor to service a machine. The contractor negligently fails to spot a dangerous fault. An employee is later injured when the machine malfunctions.

Answer: The employer remains liable to the injured employee. The duty to provide safe equipment is non-delegable. The employer can claim against the contractor, but this does not affect the employee’s right to compensation from the employer.

The Standard of Care and Statutory Influence

The standard of care is that of a reasonable employer in the circumstances. Courts consider the magnitude of the risk, the seriousness of potential harm, and the cost and practicality of precautions.

Statutory health and safety regulations, especially the Health and Safety at Work etc Act 1974 (HSWA 1974), set minimum standards. While breach of statutory duty is generally not actionable in civil claims, compliance with statutory standards is strong evidence of reasonable care—but not always conclusive.

Key Term: Health and Safety at Work etc Act 1974 (HSWA 1974)
The main statute imposing general duties on employers to ensure, so far as reasonably practicable, the health, safety, and welfare of employees at work.

Worked Example 1.2

Scenario:
A warehouse floor is flooded after heavy rain. The employer spreads sawdust and warns staff, but does not close the warehouse. An employee slips and is injured.

Answer: The employer has likely met the standard of care. The court will consider whether the precautions taken were reasonable in the circumstances. If closing the warehouse would have been disproportionate to the risk, the employer is not liable.

Breach of Duty and Causation

To succeed in a negligence claim, the employee must show:

• the employer owed a duty of care (almost always satisfied)
• the employer breached that duty (failed to take reasonable care)
• the breach caused the injury (factual and legal causation)

The court will look at what the employer knew or ought to have known, and whether further precautions were reasonable.

Worked Example 1.3

Scenario:
An employee with sight in only one eye is not provided with protective goggles. He is blinded in his good eye during work.

Answer: The employer is liable. Knowing the employee’s vulnerability, the employer should have taken extra precautions. The standard of care is higher where the potential harm is more serious.

Statutory Duties and Their Role

Statutory health and safety regulations (e.g., Management of Health and Safety at Work Regulations 1999) set out specific requirements for risk assessments, training, and equipment. While breach of these regulations is not usually actionable in civil claims, the standards they set are highly relevant in determining whether the employer has met the common law duty.

Revision Tip
For SQE1, always consider whether statutory standards have been met, but remember that compliance is not always enough if further precautions were reasonable in the circumstances.

Defences

Employers may raise the defences of contributory negligence (the employee contributed to their own injury) or, rarely, consent (the employee freely and knowingly accepted the risk). However, consent is rarely successful in employment cases.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The employer’s primary liability is a personal, non-delegable duty to take reasonable care for each employee’s safety at work.
• The four core aspects of the duty are: safe premises, safe plant/equipment, safe system of work, and competent staff.
• The duty cannot be delegated to managers, supervisors, or contractors.
• Statutory health and safety standards set minimum requirements and are strong evidence of reasonable care, but are not always conclusive.
• To establish liability, the employee must prove duty, breach, and causation.
• Defences are limited; contributory negligence may reduce damages, but consent rarely applies.

Key Terms and Concepts

• employer’s primary liability
• non-delegable duty
• safe system of work
• statutory standard
• Health and Safety at Work etc Act 1974 (HSWA 1974)