Time to face facts

There’s nothing worse than reading an article that starts by blinding you with facts, figures and statistics. We apologise, therefore, for the fact that this one does just that. There are some occasions where the sheer scale of a problem, dictates that the bad news comes at the start.

Take the annual HSE Health and Safety Statistics, for instance. Each year a report is produced by the HSE that contains a voluminous amount of information on the numbers and types of accidents at work, industrial disease and work-related ill-health.

Some of the key figures revealed in the report are mind-blowing. For instance, the last produced HSE figures for 2019/2020 tell us that during that year:

• 693,000 workers suffered an injury at work
• 559,000 workers suffered new cases of ill health which they believed to have been caused or exacerbated by their work
• 38.8 million working days were lost due to workplace injury or work-related illness
• The total costs of workplace injuries were said to be £16.2 billion, split as to £9.6 billion borne by individuals, £3.2 billion being employers costs and £3.5 billion representing the cost to the country.

Quite startling numbers, unless you read the annual HSE reports every year, in which case you will be familiar with accident figures of such magnitude.

Preventing accidents at work happening in large numbers, cannot be beyond the wit of all concerned. After all, in each case, they are at such a high level because of someone being negligent, or careless, if you prefer. That ‘someone’ who was the cause of the accident, might be an employer, it could be the worker who got injured, or it could be a colleague of the injured worker. 

What’s the best way to start trying to reduce the number of accidents at work? 

One place to start would be to get back to basics, with each individual employer leading the way. After all, if an accident at work happens as a result of an employer’s negligence then not only does the business face an accident at work compensation claim from the injured worker, it could also find itself on the receiving end of an HSE prosecution too.

When trying to find a solution to a problem, we can all sometimes be guilty of over-complicating things, when what we really need to do is keep it simple.  With that in mind here are five facts that we think every employer should know and use as a basis of looking at ways to reduce the level of workplace accidents in their own business.

1.      Employers owe a duty of care to all their employees.

Employers have a common law duty to take reasonable care of the health and safety of their employees’ (during the course of their employment). That duty has been defined as requiring an employer to provide:

• competent staff
• adequate equipment and plant
• a proper system of work with adequate supervision 
• a safe place of work

The common law duty of care is supplemented by acts of parliament, such as the Health and Safety at Work Act 1974 and a plethora of others.

Employers should focus on:

• maintaining a workplace that is staffed by employees who are both capable of doing the work that they are employed to do and of doing it in a manner that does not endanger the health of their co-workers 
• ensuring that they provide their employees with adequate equipment and plant. By ‘plant’ we are not just referring to heavy machinery. The definition also includes such items, for instance, as a workstation in an office. 
• Providing a proper system of work, i.e., one that has been put together after identifying potential hazards, to produce a formal procedure that eliminates the risks associated with those hazards. In other words, one that ensures that the job gets done safely. Supervision and monitoring of the system of work will ensure compliance with that safe system.
• Keeping a safe and healthy environment for employees to work in. This entails ensuring that:
  • the workplace buildings are in good repair,
  • faulty equipment is repaired or replaced,
  • floors are kept free from hazards,
  • safety gates and fences are in place,
  • the lighting in the building is satisfactory,
  • cleanliness and hygiene facilities are adequately maintained, and
  • the workspace is comfortable in terms of heating and ventilation.

Employers who read this, doubtless nodded an affirmatory, ‘yes, we do that’, as they went through the points above. Yet, every single case of an accident at work that was the fault of an employer, will have been caused by a breach of duty of care, that originated from failing to take one or more of the precautionary or preventative measures, we have just outlined.

2.   Slips, trips and fall accidents accounted for 29 % of all non-fatal accidents at work last year, according to the 2019/2020 HSE stats.

If ever there was a pressing reason for employers to look again at the four components that define an employer’s duty of care, then the fact that over 200,000 workers got injured from slips, trips or fatal accidents at work last year, should be the catalyst for doing so. 

The incidence of the most common type of workplace accident; slips, trips and falls, could be significantly reduced by employers;

•  recruiting competent staff and maintaining that competence by providing ongoing training,

• making sure that employees have adequate plant and equipment,

• operating and enforcing a safe system of work, and 

• providing safe places of work

3.   The concept of vicarious liability

An oft-forgotten fact is that as well as employers owing a duty of care to their employees, workers also owe a duty of care to their employer and their co-workers. This duty is imposed by the Health and Safety at Work Act(1974) (HASAW).

The duty extends to co-operating with an employer to enable it to fulfil its legal responsibilities in respect of health and safety regulations.

What if despite all the best efforts of a diligent employer, his/her efforts are undermined by the negligent act of one employee, that causes injury to another? 

Examples

A forklift truck driver injures a colleague who is walking along the factory floor, by driving into him, because the driver’s view was obstructed by the load he was carrying. 

An employee spills liquid onto a hard floor and then fails to either get it cleaned up or to notify anyone about the hazard, with the result that another employee slips on the wet floor and suffers an injury.

Vicarious liability means that in each of those cases, the employer could be held responsible for the actions of their negligent employee.

Suppose the injured person decided to make a personal injury claim? In that case, they could bring it against the employer on the basis of vicarious liability, in the knowledge that any compensation awarded, would be met by the employer’s liability insurance policy.

4.   The effect of the Enterprise and Regulatory Reform Act 2013

S. 69 of The Enterprise and Regulatory Reform Act 2013 amended s47 of the Health and Safety at Work Act 1974 and in doing so, removed any possibility of civil liability arising from a breach of statutory duty in the case of accidents at work taking place, after 1st October 2013.

Employers had long argued that the doctrine of strict liability produced some very unfair consequences. Sometimes employers found themselves having to pay out compensation for workplace accidents that were ‘freak accidents’ that the employer could do nothing to prevent. 

These were cases where, whilst the employer had not been negligent, they had been in breach of the HASAW, e.g., a failure to keep maintenance records up to date. In such cases, as a result of the breach of statutory duty, strict liability applied. The employer was held liable for the accident, without any need to prove that they had been negligent.

The introduction of the Enterprise Act has meant that for accidents happening after 2013, the doctrine of strict liability no longer applies to any civil case brought by an injured employee, against their employer. Instead, the employee has to prove that the employer was negligent.

Employers are cautioned against thinking that the Enterprise Act is their saviour in every case where they have been in breach of a statutory duty (that is a duty imposed by an act of parliament).

Whilst a breach of statutory duty might no longer give rise to an employer being held strictly liable for an accident at work claim brought by his employee, there are still two other factors to take into account:

• Breach of a statutory duty could still see an employer prosecuted for that breach in the criminal courts
• In a civil workplace accident claim, an experienced accident at work solicitor will be quick to seize upon the fact that an employer has been found guilty of a breach of statutory duty. It is most likely that he or she will ask the civil court to take the breach of statutory duty into account as evidence of the employer’s negligence.

5.   Training is the key

Creating robust health and safety policies after conducting rigorous risk assessments, providing employees with the right equipment, recording accidents properly and inspecting and maintaining equipment, all play a significant part in keeping, places of work safe and employees free from harm. 

However, to paraphrase former Prime Minister, Tony Blair, we’d suggest that the three main priorities for any employer aiming to ensure that accidents in the workplace are kept to a minimum, should be:

“Education, education, education” (or “training, training, training”)

For whilst employers can buy the best equipment possible for their workforce, have carried out the most in-depth risk assessments and have the best health and safety policies possible, if employees do not receive any, enough or adequate staff training, the numbers of preventable accidents at work, will remain at consistently high levels. So too will all the associated costs. 

Employers via their insurers will continue to pay out millions of pounds in accident at work compensation. Workers will continue getting hurt at the very place they go to earn a living.

Carl Waring is a solicitor at Mooneerams, The Personal Injury Solicitors in South Wales. For more information, visit www.mooneerams.com