Cecily Zamora
Common law is not embodied in legislation but consists of rules based on common usage and court decisions. It developed after the Norman conquest of 1066, becoming law that was common to the whole of England, overriding local law. Under common law, employers owe their employees a duty of care, which means that they must take reasonable care to avoid acts or omissions that are likely to injure their employees. This includes providing a safe working environment and ensuring the safety of the workplace. Employers must also treat their employees with respect, provide reasonable notice of termination, and act in good faith and deal fairly with employees.
| Characteristics | Values |
|---|---|
| Duty of care | Employers must ensure the safety of their employees and take positive steps to eliminate risks and provide a safe working environment. |
| Non-delegable duty | Employers can delegate the performance of a duty to employees or independent contractors, but they are responsible for any negligent performance. |
| Selection of competent employees | Employers must select competent fellow employees and give them proper instruction in the use of equipment. |
| Training | Employers have a duty to train employees and maintain their competence. |
| Vicarious liability | Employers are responsible for the acts and omissions of their employees. |
| Reasonable notice of termination | Employers must provide reasonable notice before termination. |
| Fair treatment | Employers must treat employees fairly and ensure they are not harassed or discriminated against. |
| Safe system of work | Employers must implement a safe system of work and take steps to eliminate or minimise dangers and risks. |
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What You'll Learn
Employers must provide a safe working environment
Employers have a duty of care to their employees, which means they must take reasonable care to avoid acts or omissions that could reasonably be foreseen to injure their employees. This duty of care is a legal expression that holds in both civil and criminal law. In civil law, a breach of the duty of care can result in claims for compensation by the injured party, while in criminal law, it can lead to prosecution for health and safety violations.
This duty of care translates to several specific responsibilities that employers have towards their employees under common law. One of the most important duties is to provide a safe working environment. This duty includes providing proper safety equipment and maintaining it in a proper condition. For example, in Smith v Baker [1891] AC 325, 362, it was established that an employer has a 'duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition'. If necessary equipment is unavailable and this leads to an accident, the employer will likely be held liable.
However, it is important to note that an employer will not be liable if an employee fails to make proper use of the safety equipment provided or acts foolishly in choosing the wrong tool for the job. In such cases, it must be established that the employee had been given adequate instruction in the use of the equipment. Furthermore, in certain cases, a warning of the danger to a skilled employee may be sufficient to discharge the employer's duty, and it may be reasonable to expect experienced workers to guard against obvious dangers.
The duty to provide a safe working environment also includes the responsibility to select competent fellow employees and provide them with proper instruction in the use of equipment. If an employer knows or can foresee that acts being done by employees might cause physical or psychological harm to a colleague, they have a duty to take action to prevent such acts. Additionally, employers must take positive steps to eliminate or remove workplace dangers and risks and make the premises as safe as reasonably possible. This includes undertaking thorough risk assessments of the workplace and acting on the findings.
In summary, employers have a duty of care towards their employees, which includes providing a safe working environment. This duty encompasses providing and maintaining proper safety equipment, selecting competent employees, providing proper instruction, eliminating workplace risks, and taking action to prevent foreseeable harm.
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Employers must ensure health and safety in the workplace
Employers have a duty of care to their employees, which means they must take reasonable care to avoid acts or omissions that could reasonably be foreseen to injure their employees. This duty of care is a two-way street and is not limited to purely work-related risks. For example, employers may owe a duty of care to employees who work from home, and must take steps to address domestic, family, or sexual violence in the workplace, whether employees are working in the office or at home.
Under common law, employers have health and safety responsibilities, and must take positive steps to ensure the safety of the workplace. This includes providing a safe system of work, maintaining the workplace in a safe condition, and providing safety equipment and training on its use. Employers must also ensure that the workplace is safe for visitors, users of its services, and people nearby.
The duty to provide a safe workplace is not absolute, and it may be impossible to prevent all accidents. However, the duty is high and requires positive action and continuing vigilance. Employers must undertake a thoroughgoing risk assessment of the workplace and act on it. They must also ensure that they select competent employees and maintain their competence through training.
If an employer knows or can foresee that acts being done by employees might cause physical or psychological harm to a fellow employee, it is arguable that the employer would be in breach of their duty to that employee if they did nothing to prevent those acts when it was in their power to do so.
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Employers must provide proper training and instruction
Employers have a duty to provide their employees with proper training and instruction. This duty is derived from the concept of a ""duty of care,"" which is a legal expression that refers to a person's responsibility to avoid causing harm to others through carelessness. In the context of employment, employers have health and safety responsibilities under common law, which require them to take reasonable care to ensure the safety of their employees.
The duty to provide proper training and instruction falls under this duty of care. Employers must ensure that their employees are competent and capable of performing their job duties safely and effectively. This includes providing initial training when an employee is hired, as well as ongoing training and instruction as needed. Employers must also supervise the operations of the workplace and ensure that employees are following the provided instructions and using any safety equipment provided.
If an employer fails to provide proper training and instruction, they may be found negligent and held liable for any injuries or harm caused to their employees. For example, if an employee is injured while using a piece of equipment that they were not properly trained to use, the employer may be found negligent for failing to provide adequate instruction. Similarly, if an employee sustains an injury due to a hazard that the employer failed to warn them about, the employer may be liable for not providing proper instruction and ensuring a safe working environment.
The duty to provide proper training and instruction is not limited to specific tasks or equipment but also extends to the overall safety and well-being of employees. This includes taking steps to prevent harassment, discrimination, and domestic, family, or sexual violence in the workplace. Employers must also ensure the safety of employees who work from home, which may include providing safety equipment or conducting a risk analysis of the home working environment.
Overall, the duty to provide proper training and instruction is a critical aspect of an employer's responsibilities under common law. By providing proper training and instruction, employers can help ensure the safety and well-being of their employees and avoid potential liability for negligence.
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Employers must treat employees with respect and fairness
Employers have a duty of care to their employees, which is a legal expression that refers to a person's responsibility to not harm others through carelessness. This means that employers must take reasonable care to avoid doing something that could hurt someone else. This includes taking reasonable care for the safety of employees, which depends on the nature of the employment and the circumstances. For example, providing safety equipment and maintaining a safe system of work.
Employers must also treat their employees with respect and fairness. This includes ensuring that employees are not harassed or discriminated against and taking steps to address domestic, family, or sexual violence in the workplace. Employers must also provide reasonable notice of termination and act in good faith.
In addition, employers have a duty to train their employees and maintain their competence. This includes providing proper instruction in the use of equipment and undertaking a thorough risk assessment of the workplace. Employers may also be liable for the acts and omissions of their employees, including negligent failure to operate a safe system of work.
Overall, the common law duties of employers aim to ensure fairness and justice in the workplace, with courts intervening when disputes arise and interpreting contract terms and enforcing implied duties.
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Employers must provide reasonable notice of termination
Under common law, employers have a duty to provide reasonable notice before terminating an employee's contract. This is to ensure that employees have sufficient time to find a new job. The length of reasonable notice varies depending on the specific circumstances of each case and there is no fixed formula to determine it. However, certain factors are considered, such as the length of service, the employee's position, and the availability of similar employment.
In common law jurisdictions, such as Canada, employees with more than three months of service are generally entitled to a minimum of one to eight weeks of notice. This can be provided in the form of working notice, where the employee continues to work for the notice period, or pay in lieu of notice, where the employee is compensated for the notice period without having to work. It's important to note that the specific regulations may vary across provinces in Canada, and seeking legal advice from employment lawyers is recommended.
The concept of reasonable notice also applies to fixed-term contracts. In such cases, employers can terminate the contract by providing working notice or pay in lieu of notice, equivalent to the remaining duration of the contract. This is in contrast to the situation in the United States, where employees are generally not entitled to any common law notice, even in cases of termination without cause.
The duty to provide reasonable notice is an essential aspect of the employer-employee relationship and is designed to protect employees from abrupt terminations. It supplements the employer's duty to provide a safe working environment and ensure the competence of fellow employees. While the specific requirements may vary based on the nature of employment and circumstances, the overarching principle is to ensure the well-being and fair treatment of employees.
In summary, employers have a legal obligation to provide reasonable notice of termination to their employees. This notice period allows employees to seek alternative employment and provides a level of job security. The determination of what constitutes reasonable notice is fact-specific and may vary across different jurisdictions. Employees are advised to consult employment lawyers to understand their rights and entitlements fully.
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Frequently asked questions
Common law is not embodied in legislation. It consists of rules that are based on common usage and court decisions. English common law became the basis of law in the USA and many other English-speaking countries.
Employers have a duty of care to their employees. This means that they must take reasonable care to avoid acts or omissions that could hurt someone else. Employers must also provide a safe working environment and ensure that employees are treated fairly.
A breach of duty of care can lead to a claim for compensation by the injured person. It can also lead to enforcement or prosecution from the HSE (or enforcing authority) for a breach of health and safety laws.
The employer may owe a duty of care to an employee who works from home. This will depend on the circumstances and will usually be limited to work-related risks. A risk analysis of the home working environment is usually required.
An employer has an obligation to select competent fellow employees and to give them proper instruction in the use of equipment.
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