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DUTY OF CARE LIABILITY

 

RISK – DUTY OF CARE
PROVIDE A SAFE PLACE OF WORK
MAINTAIN MUTUAL TRUST & CONFIDENCE

Employees have rights:  While they are in employment, employees have a right to expect their mental, physical and emotional good health to be valued and safeguarded – even in the workplace.

Employers have a Duty of Care:  Under the Management of Health and Safety at Work Regulations 1992, employers are obliged to assess the nature and scale of risks to health and safety in a workplace and base their control measures on it.  See our Legal Section.

ADDITIONALLY THERE IS THE FOLLOWING LEGISLATION:

* Statute – The Health & Safety at Work Act – 1974
* Common Law – Harassment Act 1997 (originally designed as an `anti-stalking’ Act)
* Common Law – under the Law of Negligence and
* Contract Law – it is an implied term in the contract of employment that the employer will ensure the employees health safety and welfare and will “not act in any manner calculated or likely to destroy the relationship of trust and confidence which should exist between the employer and employee”

One of the most famous cases highlighting the employers Duty of Care is the Case of  Walker v Northumberland County Council.  In that case the employer knew of the stress related risks but failed to take appropriate action. 

CONTRACTUAL RISKS

Unfair (constructive) dismissal– an employee would need to prove a breakdown of mutual trust and confidence in the working relationship to justify resigning and terminating employment without notice, on the basis that the employer repudiated the contract.  Such a situation could be argued to have destroyed or seriously damaged the relationship of trust and confidence that goes to the heart of the contract. Compensation for unfair dismissal if successful would entitle an employee to financial compensation for loss of statutory rights and a Basic Award and a compensatory award, subject to the legal obligation to reduce or mitigate losses. An employee would also be entitled to contractual notice pay as a net salary. 

Breach of the implied terms of your employment contract, for example, the duty to protect an employee from bullying or intimidation (under Duty of Care) the duty to provide and monitor so far as is reasonably practicable a working environment reasonably suitable for an employee to do his/her work, the duty to deal with an employee grievances promptly and properly, the duty to render reasonable support to the employee and to ensure that the employee can carry out work duties without harassment and disruption from fellow workers. In the  Employment Tribunal there is a maximum award for breach of contract but there is no limit in the County Court and High Courts.

Breach of the Management of Health and Safety at Work Regulations 1999 may  give rise a claim for damages for suffering injury or illness arising from the breach. 

Personal or Industrial Injury – Negligence. There is an implied duty on the employer to protect an employee from mental injury or illness such as the foreseeable risk of depression or breakdown from excessive work time, for example, or general stress at work.

Breach of the Employment Regulations. In the Employment Tribunal the company’s failure to follow the minimum statutory grievance and disciplinary procedures would amount to automatic unfair dismissal, with between a 10 and 50% uplift on such an award. 

Protection from Harassment Act 1997.   Damages may be awarded in respect of such claims for anxiety caused by harassment and any financial loss resulting from the harassment. There is no need to prove psychological injury.