The law protects everybody by allocating rights, assigning responsibilities (legal duties), by defining and clarifying expectations and by making everyone personally accountable (and liable) for any adverse effects their actions (and the decisions they take) have on others.
Common Law ‘duty of care’
Employees have a range of statutory duties under the Health & Safety Legislation (see below) but, these really need to be viewed as being in addition to their individual Common Law ‘duty of care’ to others and contractual obligations.
Everyone has a Common Law ‘duty’ to take ‘reasonable care’ to avoid acts or omissions which could reasonably be foreseen as being likely to cause ‘injury’ to someone else. If someone has behaved negligently and harm has happened, the Common Law provides for victims to sue the person(s) responsible.
Employees should be aware that even if the incident complained of happened at work and was strictly employment related they still stand to be sued or prosecuted as private individuals if their actions (including inaction) contributed significantly to harm happening to the victim.
Note: Although, not under a legal obligation to do so, some employers (and some Unions) will sponsor an employee’s legal costs. If, however, the employee’s actions have fallen outside the employer’s expectations (i.e. Policy, Code of Practice, Safety Instructions/Procedures), it may be that the employer (or the Union) wish to disassociate from the employee’s actions, resulting in the support being withdrawn.
All contracts of employment include ‘implied duties’. These exist whether or not they are actually written down as part of the contract.
The list of employees’ implied duties include:
- A duty to co-operate with their employer.
- Work in accordance with lawful orders.
- Serve the employer faithfully and honestly.
- Exercise skill and care in the performance of their work.
Health & Safety Duties
The Health and Safety at Work Act 1974 made employees (at all levels) personally responsible and legally accountable for their behaviour, decisions and actions at work.
Section 7 Health and Safety at Work Act 1974 made it a legal responsibility of all employees to take ‘reasonable care’ of their own health and safety as well as the health and safety of other persons who may be affected by their acts or omissions.
Anything less, leaves the employee open to criticism (which, in the event they become injured themselves, could result in a reduction of any compensation award that they may be eligible for in proportion to how much their own actions contributed to the severity of the outcome).
And, in the event that the employee’s actions contribute in a significant way to serious harm occurring to someone else, employees risk complaint, civil and criminal charges, prosecution, conviction, and prison. Under S. 36/ 37 H&S at Work Act 1974, individuals within an organisation can be charged with criminal offences where, through consent, connivance or neglect, they contribute significantly to serious harm occurring.)
An ordinary cautious person
Courts, Employment Tribunals, and Insurance Companies will ‘try’ what a defendant did against what an ‘an ordinary cautious person’ might have done in the same circumstances and, in some cases ‘what a professional, cautious person might have done (e.g. Nursing).
Other Statutory Health & Safety duties
Section 14 of the Management of Health and Safety Regulations 1999, requires employees to:
- Co-operate with the employer and others to meet statutory requirements (i.e. compliance with guidance, Codes of Practice, Instructions, Safety Procedures, Training, etc.)
- Avoid interfering or misusing anything provided in the interests of health safety and welfare.
- Inform the employer of any situation at work which may involve the risk of imminent danger and report any shortfalls in existing safety measures.
S. 44 Employment Rights Act 1996
S.44. of the Employment Rights Act 1996, could be considered to be the “corner stone” of the Health and Safety legislation.
Here is why:
- S44. acts as an important ‘fail safe’ mechanism for the Health and Safety legislation – handing employees the means to contest the adequacy / suitability of the safety arrangements without fear of recriminations.
- S44. Empowers employees to be able to (for everyone’s benefit) draw attention to safety shortcomings that may exist and which their employer is disregarding.
- S44. Clarifies the circumstances in which an employee should take “appropriate action” to withdraw / remove themselves from danger.
- S44. Leaves employees with no excuse whatsoever for tolerating unsafe working conditions – and by so doing (and by design) acts as a real deterrent against an employer either deliberately or carelessly devoting inadequate resources to the protection of safety against violence in their workplace.
UK law recognises how important it is that employees ‘Blow the Whistle’ in circumstances in which they believe:
- The health and safety of any individual has been, is being, or is likely to be endangered.
- A person has failed, is failing, or is likely to fail to comply with a legal obligation.
- A criminal offence has been, is being, or is likely to be committed.
- A miscarriage of justice has occurred, is occurring or is likely to occur.
- The environment has been, is being, or is likely to be damaged.
- Information showing the above has been, is being, or is likely to be deliberately concealed.
The law encourages employees to call public attention to such situations by protecting employees against all forms of recrimination from their employer.
The Public Interest Disclosure Act provides full protection for employees against all forms of recrimination by their employer consequent to the disclosure of any information to any party, provided the information passed was made:
- In good faith, and in the belief that the information is true.
- Without the purpose of personal gain.
- In the belief that if it were to have been disclosed directly to the employer that the employee would suffer detrimental treatment, that the evidence would be concealed or destroyed, or where a previous disclosure to the employer has not resulted in a suitable response.
This ‘protection’ is not restricted to employees and includes Agency staff and individual contractors as well.
Employees who are subjected to any form of detrimental treatment because of having made a “Protected Disclosure” can claim relief in employment tribunals. (Any dismissal would be automatically unfair and could also lead to a compensatory award or an order for re-employment.)
NB: Any agreement or Contract that attempts to prevent a ‘protected disclosure’ being properly made will be invalid.
Just because the law says that ‘whistleblowers’ are fully protected against recriminations doesn’t mean that recriminations won’t happen!
It can be a rough road.
Find out more!