Duty of Care - An Employers Guide

No matter the size of your company - all employers hold a duty of care towards their staff.

A duty of care can include anything - from managing grievances to providing training. But it's hard to list all these duties, as there's a lot you need to comply with.

Having said that, failure to provide an adequate duty of care could lead to serious consequences for your business. Like losing talented staff, compensation fines, and even business closure in extreme cases.

In this guide, we will look at why it’s important, and how to comply with it within your business.

What is a duty of care?

Duty of care is the legal or ethical responsibility of protecting the safety and welfare of people.

For employers, it's about taking reasonable precautions to ensure the safety of all staff employed within your company. This obligation also extends to any other persons found on your property; like customers, clients, or the general public.

This refers to individual wellbeing, legal compliance, and good business practice. In the end, it's all about how you act when it comes to workplace health and safety.

Why is duty of care important?

The obligations are important because it requires people to exercise care whilst working within a business.

It outlines a general rule for employers so they can make decisions that are financially, ethically, and legally sound. From here, they can act in a way that promotes the business's best interests.

This also requires employers to stay present, informed, and engaged. If they're faced with any work-related concerns, their duty of care (required by the law) obliges them to act on good judgments or faith.

Examples of legal duty of care in the workplace

There are several examples of what counts as a duty of care within the workplace. That's because employers have all sorts of legal obligations - which vary via industries.

However, typical areas which apply to the majority include:

Safeguarding

All businesses must comply with the law on safeguarding. And this also includes children and adult protection.

It's important for employers to deal with any safeguarding issues spotted during work practices. For example, having safer recruitment processes when working with vulnerable adults.

Safeguarding can be a tricky topic to steer through, as it comes with all kinds of legal duties and obligations. But when it's part of your duty of care it must be appropriately applied within your company.

Equality, diversity, and inclusion

Often, you might hear the terms equality, diversity, and inclusion muddled up. But they stand as three separate entities.

Employers are required to provide equal opportunities to people from all walks of diverse life. This is regardless of any protected characteristics; like race, religious belief, or sexual orientation.

Inclusion is all about creating a working environment that involves all people regardless of their differences. That's why equality, diversity, and inclusion comes part and parcel of your duty of care.

Mental health

Just like physical health, mental health must be given appropriate importance, especially within the workplace.

Part of your duty of care is to ensure any employee with a psychological condition is given fair opportunities at work. They're also legally entitled to reasonable adjustments - making their everyday activities easier to manage.

Wellbeing

Wellbeing relates to the state of being comfortable, healthy, or happy. Whilst it might not seem applicable to employers, it's actually part of your duty of care.

It's important to understand how to protect, or even promote, wellbeing in your workplace. This includes both their physical and mental state.

From offering remote working to additional maternity leave. When your staff feel respected and valued at work, it encourages them to stay employed for longer and work towards business success.

Do employers have a legal obligation for duty of care?

Yes, all employers have an obligation, regardless of whether they run a private or voluntary organisation.

When it comes to duty of care, there are certain legal obligations set out in employment law. For example, typical areas that the law covers include:

The Health and Safety at Work etc. Act 1974 (HSWA)

HWSA is considered as the main law when it comes to workplace health and safety in the UK. It places a duty onto both employers and staff; and obliges them to protect the welfare of all persons linked to work duties or practices.

The Management of Health and Safety at Work Regulations 1999 (MHSWR)

MHSWR is the law that covers an employer's duty to identify, record, and report accidents and serious injuries caused within the workplace. The law also specifically covers how to prevent accidents from reoccurring in the near future.

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR)

RIDDOR is the law that outlines a duty towards reporting specific work-related accidents. These usually include reporting occupational diseases, dangerous occurrences, and near-misses to the Health and Safety Executive (HSE).

The Control of Substances Hazardous to Health Regulations 2002 (COSHH)

COSHH is the law that outlines an employer's duty to assess all risk related to harmful substances used at work. This duty also includes taking precautions to minimise the harm caused by them.

The Provisions and Use of Work Equipment Regulations 1998 (PUWER)

PUWER is a law that covers an employer's responsibility to ensure work equipment is kept to a relevant standard. This includes making sure equipment is suitable for tasks, well-maintained, and inspected by a reasonable person.

The Equality Act 2012

The Equality Act outlines a duty of care that ensures protection from unlawful discrimination. This includes age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Read our article: Equality in the Workplace: Employer Responsibilities

What happens if you breach duty of care?

When it comes to general duty of care, it legally applies to employers, their workforce, and anyone found on relevant business property. Therefore, there are serious consequences if you breach duty of care.

Employers could be held liable for negligence if a person faces serious harm or injury. Even if the breach was caused by another person - the employer holds overall responsibility for the failure.

The High Court generally passes rule on whether a work practice or environment is sound. To prove the negligence, they'll focus on assessing whether the employer:

• Fulfilled their duty by acting in a reasonable way.
• Conducted an adequate level of due diligence (also known as ordinary care).
• Acted in good faith.
• Didn't waste company assets on overpaying for goods, property, or labour.

Can an employee breach their reasonable care?

Yes, an employee can breach their duty of care at work.

They also hold a legal requirement to comply with safety standards and laws. Even though employers have overall responsibility, an employee can still face serious legal action for neglecting their reasonable care duty.

That's why it's important for employers to outline the limits to their duty of care. Meaning, they must ensure their staff understand they can be held liable for a breach they cause. And be forced to attend court and pay for damages if they're found guilty.

Can an employee raise a personal injury case?

Yes, if an employee were injured due to neglected duty of care, they're allowed to raise a personal injury case.

The case law must establish that the employer (or company) was legally obliged to act in a way that doesn't foreseeably harm others.

When it comes to dealing with a personal injury case, UK tort law outlines four outcomes:

Refrain from intentional injury

If a person injures another person intentionally, the behaviour is seen as a liability. The injured person may express their legal rights to recover damages due to the other person's actions.

Negligence

If a person's action injures someone unintentionally, but it creates foreseeable harm to others, it may count as negligence. All businesses are required to refrain from actions that could lead to gross or serious negligence.

Recklessness

If a person acts in a reckless manner, it means they don't have any regard for the safety of others. The court may decide that the defendant owed them a duty of care and must pay damages for their actions.

Strict liability

If a manufacturer creates products with defects that cause harm, they could face strict liability. They could still have liability even if there's no proof of them ignoring industry standards.

Strict liability is often passed after a series of investigations and hearings. But if the sentence is passed, the defendant's conduct could lead to compensation fines and further legal damages.

How to comply with duty of care within the workplace

Employers must take reasonable precautions when it comes to duty of care. This includes following both an ethical and legal obligation.

When it's done right, you can remain reassured that your employees and public people are fully protected. Leaving you to concentrate on growing a successful business.

How to create a policy on duty of care

The first step employers should take is to create a policy that outlines duty of care.

The policy shows guiding principles and responsibilities held by the business. And what is legally expected from your staff. You can even add your overall rule to employee handbooks and employment contracts, too.

All staff should have access to knowledge that your reasonable care exists. Be aware, if you neglect this, employees won't feel comfortable working somewhere that doesn't value their welfare and safety. Meaning, they won't stay employed for long.

Provide training on safe work practices

Workplace health and safety counts as one of your most important legal obligations. This includes providing appropriate training on safe work practices.

Without proper training or knowledge, your staff are at a higher risk of injuring themselves, or others around them. You could end up facing personal injuries and negligence claims at an employment tribunal. And these often escalate into expensive matters for businesses.

By providing proper training, employees can work to the safest legal standard. It keeps all people connected to your business fully protected, along with your legal duty of care.

Highlight ways to report work-related concerns

Sometimes, an employee may wish to raise concerns regarding workplace standards.

This is their legal right, however, you don't want to have to deal with a surprise inspection from the Health and Safety Executive (HSE). It's in your best interests to highlight ways for them to raise concerns internally.

Employers should:

• Hold a private, informal meeting with the concerned person.
• Allow them to share what their concerns are (without fear of judgement or consequence).
• Inform them on what the process is for addressing these concerns.
• Provide direct support if needed (or referrals to external support groups).
• Announce the outcome for managing their concerns (providing them with appropriate feedback).

Apply amendments from work risk assessments

A great way to implement your duty of care is by fixing any ongoing concerns within your workplace. Employers can do this by applying amendments found in their work risk assessment.

Work assessments come in all shapes and sizes, from applying safety standards to safeguarding children and adult protection.

Once you've identified relevant work concerns, you'll be able to create a safe work environment that protects both employees and the general public, all whilst complying with your duty of care.

Promote the importance of employee welfare

It's important to promote employee welfare within your workplace. This includes both physical and mental elements.

Under employment law, employers must ensure their working practices don’t worsen a person's health conditions.

There are a great number of ways to do this. For example, to tackle work-related stress, provide health assessments to all staff. These assessments can help identify and minimise workplace risks that may trigger or exasperate a person's mental conditions.

Related article: Duty of Care Examples

Get expert advice

It’s important for all employers to comply with their lawful duty of care. It’s not only a legal obligation, it's also an ethical one, too.

Focusing on this allows you to build a safe and secure workplace for all. But if you neglect your legal duties, you could be held liable for negligence claims and face hefty compensation penalties.

Health Assured offers expert advice on duty of care. Our teams offer support on employee wellbeing whilst simultaneously meeting your business needs.

We also provide a 24/7 helpline that's open 365 days a year–helping you care for your staff all year round. Arrange a call back from an expert today on 0800 206 2534.