On Duty of Care

Why not read our latest blog post, Long-term absence dismissal not always unfair?

Duty of care imageSome cases where an employer has a duty of care to protect employees are clear cut. In activities like manual handling and working at heights it’s rather obvious that management must provide the appropriate training, tools and procedures. But in a host of other cases, we only hear about there being a duty of care when the case hits the headlines. How does the SME principal determine when to act and what to do to discharge this duty of care? And more especially how does he or she determine when to act without constant reference to a lawyer?

This short blog develops a simple model firstly to suggest when to act and secondly to understand the action needed.

The firm is asking the employee to act on its behalf. The employee agrees to obey reasonable instructions and enters an employment contract on this basis. In undertaking the requested action, the employee may be doing something that he or she would not normally do and in many cases there is some risk to themselves that they would not normally experience. Management take on a duty of care to reduce that risk to an acceptable level – to a level normally experienced in the employee’s everyday life. This definition gives us the first clue about when a duty of care emerges and how to tell when mitigation might be needed.

Management should consider a duty of care to exist whenever the risk to employees exceeds that present in their ‘normal life’. The simplest way to tell is to do a risk assessment – and before you squeal with anguish, risk assessments are quick and easy. See elsewhere on TimelessTime’s web site for more. The following shows some examples of cases where risk becomes significant and a duty of care prevails.

Office Work The risksare generally low. Electrical safety is the only real issue. Management has a duty of care in this regard, easily discharged by PAT testing appliances annually. Also check for trip hazards and unsafe storage.
Use of own vehicle on company business Risk is that the employee will not have valid insurance (since often with cheap insurance, business use is excluded) and that the vehicle will not be in a roadworthy condition. More frequent use during the business day heightens risk. Annual document checks are needed and perhaps training too. Additional insurance may need to be paid for by the firm.
Travelling abroad on the firm’s business The main risks are around health and adequate insurance must be held. Also training in prevention, health screening and management of inoculations against common infections are appropriate. Adequate funds must also be available to recover from local problems.
Lone working (for example care workers going house to house) Here management must know where each worker is at any instant in time. Workers must have the ability to summon assistance and for help to arrive within an appropriate time. Many simple systems can be implemented to control.

But how does the principal know when to act and what action to take? Action is needed when the risk becomes significant. ‘Significant’ is a subjective measure. How do we make it usable in practice? The answer is in the term ‘prudence’.

In making judgements about where to act, ask yourself one thing. If you were a parent, a prudent parent, would you be happy for your son/daughter to undertake this activity without controls, training and tools? If the answer is ‘no’ then act. If the answer is ‘OK, the risk is acceptable to me as parent’ then make a note of your deliberations in your daybook, communicate as appropriate to staff and move on. Take guidance from the precautionary principle. Although more about public policy development, it is useful in that it states that if there is no consensus that the risk is low, act to protect.

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