Understanding an employer’s duty of care

All employers are under a duty to protect staff from harm and the need to do so in a particular sector has been in the spotlight because of the increasing danger employees are facing at work.

An employer’s duty of care means it must do all that it reasonably can to protect  employees' health, safety and wellbeing at work.

The requirement is wide ranging and includes providing a safe working environment, regardless of the size of the business.

Failing to protect staff can have serious consequences for any employer and lead to legal claims.

One part of an employer’s duty of care that has received much attention in recent months, is the need to assess the risk of violence towards staff and how best to combat it.

This is particularly important in roles in which an employee’s duties involve direct interaction with other individuals e.g. caring, education or providing a service.

There have been worrying reports and studies published about the increasing number of violent attacks on shopworkers.

Attacks on employees working in retail are on the rise as two out of five face abuse from customers every week, according to new research[1 cited 20.11.23]

It is reported that shop workers are being shouted at, spat on, threatened, or hit on a weekly basis.

The shocking incidents have left 66 per cent, of the 1,600 staff who took part in the study, feeling stressed or anxious about going to work, while 42 per cent are considering quitting their jobs or leaving retail work altogether.

Rates of abuse are said to have risen by seven per cent from last year, though nearly a quarter of workers do not report their mistreatment at work.

The rise in attacks on shop workers is thought to be fuelled by having to confront desperate shoplifters and the cost of living crisis.

Some staff in retail outlets and supermarkets now wear bodycams to protect the safety of workers.

Leading retailers have also asked for government backing to help them in their efforts to keep employees safe from harm while at work

Nearly 90 business leaders, including the bosses of Tesco, Greggs, Boots, WHSmith and Primark, wrote to the former Home Secretary Suella Braverman to press for a law change, making it a specific criminal offence to assault or abuse staff[2 cited 20.11.23]

An employer’s duty of care involves much more than protecting staff from physical assault. Here we take a closer look at an employer’s overall duty of care to its workers.

The employer’s duty of care

All employers have a common law 'duty of care' towards their employees and there are specific rules they must follow under health and safety law.

A business has a legal obligation to take all reasonable steps to ensure the health, safety, and welfare of its employees. Some important aspects of this are:

• Ensuring the working environment is safe and healthy.
• Providing sufficient training, equipment, and supervision for staff.
• Preventing or reducing the risk of physical and psychological harm.
• Providing required support for workers who are experiencing stress, illness, or injury.
• Consulting with employees and their representatives on health and safety matters.

The responsibility for employers to protect staff from harm is both a legal and ethical one that applies to all organisations, regardless of the size or nature of the business.

Why is it important?

It is for several reasons, which include that it helps to:

Protect the health, safety and wellbeing of employees at work, which can improve their productivity, performance and morale.

Prevent or reduce the risk of accidents, injuries, illnesses, or legal claims that could harm the employees, the employer, or the business.

Comply with the law and avoid penalties, fines, or reputational damage for breaching health and safety or equality legislation.

Create a positive and respectful work culture, where employees feel valued, supported, and included.

The duty of care is a legal and ethical obligation. It requires employers to be attentive, informed, and engaged.

If an organisation encounters any work-related issues, it has to act  in good faith or judgment, as required by the law.

If an employer fails to fulfil its duty of care, it can face legal consequences.

What can happen if the duty is breached

While legal action can be taken it cannot be specifically for a ‘breach of a duty of care.’ It must be for some other reason, as there is no such standalone legal claim.

However, claims that could directly arise from an employer’s failure to meet its duty of care can include:

• Discrimination - for which financial penalties and damage to the reputation of a business can be significant.

As an example, a female bank worker was awarded what was a record £4.7m after making more than 60 allegations of harassment and disability discrimination covering the entirety of her employment[3 cited 20.11.23]

• Constructive dismissal – when an employee feels forced to resign because their employer has seriously breached the employment contract e.g. not being paid, making unreasonable changes to working arrangements without consultation or failure to protect them from bullying or harassment[4 cited 20.11.23]

• Breach of contract – an employee cannot make this claim to an employment tribunal while they are still employed, but they can make a claim to county court

Employers can also face prosecution arising from a failure in its duty of care.

The Health and Safety Executive (HSE) or the local authority can take action against a business for breaching health and safety regulations.

At the start of this year a civil engineering firm was fined more than £4m after its staff twice struck overhead powerlines while working on the M6 motorway and causing cables to land in the path of passing vehicles[ 5 cited 20.11.23]

The HSE is reported to have said  ‘…the company’s failure to plan the work properly and provide an adequate risk assessment put its workers and those using the motorway in significant danger.’

Some relevant legislation

Included in the law covering an employer’s duty of care obligations are:

• The Health and Safety at Work Act, which places a duty on both employers and staff; and obliges them to protect the welfare of all persons linked to work duties or practices[ 6 cited 20.11.23]

• The Management of Health and Safety at Work Regulations 1999, covers an employer's duty to identify, record, and report accidents and serious injuries caused within the workplace, and particularly how to prevent accidents from reoccurring in the near future[ 7 cited 20.11.23]

• The Control of Substances Hazardous to Health Regulations 2002, covers an employer's duty to assess all risk related to harmful substances that are used and precautions to minimise any harm caused by them[ 8 cited 20.11.23]

• The Equality Act 2010 outlines a duty of care that ensures protection from unlawful discrimination e.g. age, disability, race etc[9 cited 20.11.23]

How to comply with a duty of care within the workplace

An employer must take reasonable precautions and should create a policy that outlines its duty of care.

Work should be done to identify any health and safety risks to which employees may be exposed to in the working environment, with appropriate measures taken to control them e.g. conducting risk assessments or providing a safe workplace.

Staff should be protected from all forms of discrimination, harassment, and victimisation and supported with their mental health and wellbeing at work.

Good communication is key, and employers should consult and listen to employees about matters that concern them.

Training and knowledge for staff is vital, as workplace health and safety is a legal obligation. Without the necessary information there is a danger that staff will be at greater risk of injuring themselves or others affected by what they do.

Appropriate training helps to ensure employees work to the safest legal standard, and it also helps an employer to meet its duty of care.