Common law liability

Apart from the statutory requirements, employers have a duty to provide safe working systems as well as a safe place of work under common law.

Safe systems involve the use of competent employees and provision for qualifications, information, instruction, training and special needs.

This includes actions of colleagues: an employer who knows, or can foresee, that acts done to an employee by their colleagues, which might cause physical or mental harm, could be in breach of duty to the employee if the employer does nothing to prevent those acts. For example, this could be the case if an employer failed to respond if one employee complained about another. It may be considered negligent to fail to provide training for matters, like lifting, when they are part of the employee’s regular system of working.

Safe systems of working include: 

• organisation of work

• the way it is to be carried out

• relevant training

• the number of employees required.

A number of cases have developed the law in this area. Perhaps the most important is Johnstone v Bloomsbury Health Authority, where it was made clear that a breach of the employer’s duty can occur if an employee is asked to work such long hours that it is foreseeable their health will be damaged.

The duty of care also includes psychiatric damage – including workplace stress. Subsequent cases mean the legal test has been set as foreseeability: someone who is off work or who complains about excessive stress and workload but is not helped may have a claim.

The employer is expected to take reasonable steps only (referral to a counselling service may be sufficient, for example) and if there are other stress factors, such as problems at home, then an attempt will be made to apportion the amount of stress caused in the workplace.

The Deadman v Bristol City Council case limited claims in this area by stating that an employer’s policy of dealing ‘sensitively’ with claims of harassment was aspirational and did not form part of a contract of employment.

In 2006 a number of high court cases established that the employer’s duty extends to the prevention of bullying – in a much publicised case a City worker received £800,000 in compensation after being bullied by four co-workers.