Employers are responsible for the safety of their employees and the overall work environment. This is why the law imposes a non-delegable duty on employers to ensure the safety of their employees while at work.
Understanding the Non-delegable Duty
A non-delegable duty means that the employer cannot transfer their responsibility for the duty of care to their employees. Even if an employee should have foreseen the risks associated with an unsafe work system, the employer cannot evade liability by claiming that the employee should have taken it upon themselves to create a safer work system.
The non-delegable duty is not a form of strict liability. It requires employers to exercise reasonable care in ensuring the safety of their employees. If an employer has taken reasonable care in all circumstances, they will not be held liable for any injuries that occur. However, when the work system or mode of operation is complex or dangerous, it is the employer’s responsibility to adopt a reasonably safe system of work. In essence, the key question is what steps a reasonable and prudent employer would take to protect the safety of their employees.
The Scope of Duty
The common law non-delegable duty encompasses four aspects:
- Competent staff
- Safe plant and equipment
- A safe place of work
- A safe system of work
It is worth noting that under the Occupational Safety and Health Ordinance, the employer is obligated to provide a safe working environment, including safe plant and systems of work, proper training and supervision, and a working environment without risks to health. These provisions align with the non-delegable duty of care imposed by common law.
The duty to provide competent staff is similar to vicarious liability. It means that employers are held liable if an employee is injured due to the negligence of a fellow employee. In other words, employers must ensure they hire competent workers to protect the safety of their employees.
Safe Plant and Equipment
This duty may overlap with the employer’s statutory obligations under specific regulations. For example, the Factories and Industrial Undertakings Ordinance requires employers to provide safe machinery and equipment. However, the common law goes a step further, requiring employers to provide safe and suitable working tools that may not be covered by any specific ordinance.
Safe Place of Work
Employers have the responsibility to ensure that the premises where employees work are safe, including providing safe entry and exit points. This duty may align with the employer’s duty under the Occupiers Liability Ordinance, which pertains to the condition of premises. When the workplace is under the control of the employer, it is their duty to take reasonable steps to ensure the workplace’s safety.
It is important to note that the duty to provide a safe place of work remains non-delegable, even if the employee is working outside of the employer’s premises. In a relevant case, the court held that an employer was in breach of their non-delegable duty when an employee fell through holes in the flooring of a building at a construction site in Shanghai. The employer failed to inspect the site and ensure a safe system of work.
Safe System of Work
A safe system of work refers to the organization and implementation of work processes, including adequate instructions, precautions for safety, and the involvement of the appropriate personnel. Employers also have a duty to perform risk assessments.
This duty extends beyond establishing a safe system of work. Employers must ensure that employees follow safety procedures and that the system is effectively enforced. Even if an experienced employee is aware of the risks involved in their work, it does not release the employer from their duty of care. However, the employee’s knowledge may be considered when determining the extent of an employer’s liability and the employee’s contributory negligence.
The employer’s non-delegable duty is crucial for protecting the safety of employees at work. It complements the employer’s statutory obligations and provides enhanced protection. Although employers are required to act reasonably in the circumstances, the duty of care is set at a high standard. As illustrated by the aforementioned case, employers have a duty to provide a safe place of work, even if it is outside their own premises and located abroad. The duty goes beyond establishing a safe system of work; employers must also ensure its enforcement at all times.
For more information about the non-delegable duty owed by employers, please visit Garrity Traina. Please note that this article is a general outline and should not be relied upon as legal advice. It is always recommended to seek professional legal assistance for specific cases.