A client recently asked, “Are all Accident at Work Claims Brought Against the Employer?” Good question but a better one would be: who owes you, as an employee, a duty of care? Firstly, the law, the part that’s going to show you’ve done your research and you know what you’re talking about.
Regulation 4 of The Workplace (Health, Safety and Welfare) Regulations 1992 establishes who owes the duty of the care in the workplace.
In brief, it states that responsibility lies with the person who has ‘control’ of the workplace. This can be;
* An Employer who controls the workplace where any employees work
* Any person who has any control of the workplace
The above seems fairly vague and unfortunately can lead to some difficulties which you need to be aware of. The biggest difficulty arises in multi-occupancy buildings i.e. where there a various companies working out of the same office block.
Liability problems may arise when, for example, a slippery substance is found to be the cause of an accident on the main stairs. The main stair way will be under the control of all occupants and also the landlord. Detailed enquiries will need to be made in these circumstances to try and establish who may be liable.
Referring to the above Regulations and in particular the word ‘control’; what does it mean in these circumstances and how far are our employer’s ‘in control’?
‘Control’ is a question of fact and the key point to establish is; has my employer taken all reasonable steps they could have, in order to avoid this incident? Could they have reasonably done any more?
It is here that you should cite the case of ‘Bailey v Command Security Services Ltd’ and the brief details of the case are as follows:
‘A security guard, patrolling a warehouse, fell down an unguarded lift shaft whilst on duty. His employer was held to be an occupier as he had the power to report such dangers. However, this point did not establish control as there were no steps the employer could have taken to ‘rectify’ the position. It was established that the correct Defendant in this case should have been the owner of the warehouse as it was he that had the power to physically alter the workplace.’
Therefore, the key question is whether your employer in control of the area the accident occurred in?
Then ask:
1. Did my employer take reasonable steps to avoid such an incident occurring?
2. Was there anything my employer could have done to rectify the situation?
Answering the above questions should help you to set you on your way to trying to establish who is liable and who the claim needs to be directed against.