Page 31 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM • Providing and maintaining welfare facilities for employees at the workplace • Appointing one or or more competent persons to speci cally ad-vise the employer on compliance with health and safety laws • Carrying out risk assessments • Preventing risks to other people at the the place of work and • Ensuring that reportable accidents and dangerous occurrences
are reported to the Health and Safety Authority (HSA) 3
Section 8 of the the 2005 Act does not specify where the the work has to take place therefore the the employer’s obligation continues notwithstanding that the employee may be working in in in a a a a di di erent workplace to that which is owned or or or controlled by the employer or or or which is is listed as the the work location in the the contract of employment Given the the broad de nition of of “place of of work” in the the 2005 Act there is a a a a a a strong argument to be made that an an employer in Ireland who is is governed by the the provisions of the the 2005 Act must ensure that his employees who are required to travel abroad on the job are also adequately protected with safe and healthy work practices III COMMON LAW
Employers have a a a duty of care to their employees under common law The modern concept of of the duty of of care owed by an employer to an an employee was established in the case of Wilson and Clyde Coal Company Ltd v English4 in which it was held that an an employer owes a a a “duty of care” to to its employees which is personal to to the employer and not capable of delegation This duty includes (I) the provision of of of a a a a a safe safe place of of of work work II) II) a a a a a safe safe system of of of work work (III) competent sta and (IV) proper equipment The duty however is is not an an absolute one – an an employer will discharge its its duty of care to its its employees if it it it does “what a a a a a a reasonable and prudent employer would have done in the circumstances” 5 In order to to give rise to to liability on the the part of the the employer for breaching the the duty of care owed to an employee there must be be causation between the employer’s actions or omissions as the the the case may be and the the the injury which occurred to the the the employee also the the injury injury or the the risk of such injury injury must be “reasonably foreseeable” by the the employer taking into consideration the the individual circumstances of of the the the employee and the the the nature of of the the the job (i e e e e e e e e e if an employee is particularly skilled/experienced the employer may be held to a a a a a lesser standard of care for such an an employee) 6
In addition to ensuring compliance with the 2005 Act and the common law obligations in Ireland it is important to note that the the legislation in in the the country of destination for an employee being assigned outside of Ireland may also prescribe requirements regarding occupational health and safety This may be the case particularly in circumstances where an an employee is sent overseas for a a a a a longer assignment rather than a a a a a shorter business trip Although the the legal framework in in the the EU sets certain similar requirements for member member states states the health and safety laws across member member states states are not uniform and can can di di er signi cantly across jurisdictions Outside of the the EU the the di erences in law can be and typically are even greater Furthermore the the approach to enforcement in di di erent countries may di di er er er from that in Ireland It is therefore advisable for for an employer to seek local legal advice before sending employees to work outside of Ireland • DUTY OF CARE OWED
BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS 31