Page 15 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM In an employment relationship relationship it is is generally accepted that the the rst element – – a a a a a a a a a a a a a a proximate relationship relationship between the the the parties – – is is is present As such in in in the the the the the case of of a a a a a a a a a a a a a dispute a a a a a a a a a a a a a court would usually be be looking at at at at whether whether the the the the the the the injury disease or or death of of the the the the the the the employee was was foreseeable and and whether whether there there was was a a a a a a a a a a a a a a a causal link between the the the the the the the the the employer’s actions (or lack thereof ) and and the the the the the the damage or or injury sustained by the the the the the the employee Foreseeability
A foreseeable risk risk is is is is a a a a a a a a a a a risk risk that a a a a a a a a a a a reasonable person should be able able able to to identify Foreseeability
is is is is is assessed by reference to to all of of the the circumstances of of the the the case case so so what is is reasonably foreseeable foreseeable in in one case case may not not be foreseeable in another For example there would be a a a a a a a a a a foreseeable risk involved in in in in in in standing next to to to a a a a a a a a a a a a a a a tall tall metallic object in in in in in in an an an an open space during a a a a a a a a a a a a a a a lightning storm Add an an an umbrella to to to the the the the equation and the the the the foreseeability of the the the the the risk risk increases However there may be no foreseeable risk risk in in in in standing in in in in exactly the the the same position with multiple umbrellas on a a a a bright sunny day Causation
For causation to be be be established there must be be be a a a a a a a a a a a link between the the the the the action action or or inaction of of the the the the the employer and the the the the the harm that the the the the the employee su ers The causation principle is often referred to as as the the “but for” test For example if there was an an unmarked hole in in a a a a a a a a a a a walkway which an an an an employer chose not to to cordon o o o o o o o o o o o o o o or or or or sign post and an an an employee was subsequently injured by falling into the the the hole hole there would likely be be a a a a a a a a a causal link between the the the the the employer’s failure failure to to sign post the the the the the the the hole hole and the the the the the the the employee’s injury Applying the the the the the the the “but for” test: but but for for the the the the the the the employer’s failure failure to to to make the the the the the the the area safe the the the the the the employee would would not not have have fallen into the the the the the the hole and would would would not not therefore have have been injured As such a a a a a a a a a a a a a causal link would would likely be be be established between the the the the the failure on the the the the the part of the the the the the employer and the employee’s injury THE DUTY OF CARE Where a a a a a a a a common law duty of care exists employers must take reasonable precautions to protect their employees from any foreseeable risk of injury disease or or death From a a a a a a a a a a practical
perspective this means that employers owe a a a duty to their employees to:
• provide safe systems of work • take care in in selecting proper and competent fellow workers
and supervisors • provide proper machinery and and materials and and • provide and maintain a a a a a safe system of work5 Third party premises
Importantly these duties don’t only exist while an an employee is is working at his or or or her usual place of work work It has long been established that employers who send their sta sta to work at at the the premises
of others cannot relinquish all responsibility for their safety simply because the the employee has left their primary place of work6 Rather employers must continue to safeguard employees who are working o o o o o o site at at at at a a a a a a third party premises
or or at at at at remote locations at at at at the the employer’s request As such employers should ensure that the the working conditions systems of work work machinery and materials that their employees may be using while working o o o o site are satisfactory especially if the employees are working from locations where the local safety standards and and working practices may not comply with the accepted standards in England and and and Wales Travel
An area that is often overlooked when employees are are working abroad is is travel either to to to or or or from work on a a a a a a a day-to-day basis or or or to to to and from from the UK Generally when an an employee is is working from from his or or her usual place of work the employer will not have responsibility for the the employee’s travel to and from work the the employee employee will be expected to make his or her own travel arrangements However where an employee is working abroad the duty of care may include a a a duty to ensure the employee’s safety while in transit In the case of Palfrey v Ark O shore Limited7 an employee contracted a a a a a fatal malarial infection when travelling to to West Africa to to work on on an oil rig Mr Palfrey was informed by his employer that he did not need to be concerned about the risk of malaria in in West Africa as he he would be working on an oil rig o o o o o o shore where there was no risk of being bitten by a a mosquito As such • DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS 15