Page 32 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM This is is compounded by the EU Posted Workers Directive (96/71/ EC) (the “Directive”) which applies generally to the the assignment of a a a a worker from one member member state state to another member member state state within the EU The Directive outlines a a “core set” of terms and conditions of employment which must be guaranteed to workers posted to a a a a a a member state as if they were national workers of that member state including health and safety at at work The Directive was transposed into Irish law by s20 of of the Protection of of Employees (Part Time Work Act) 20016 7 IV LOGISTICS
THIRD PARTY PREMISES
As noted above an an employer may be held liable to an an employee for injuries sustained arising from an unsafe place of work regardless of of whether that place of of work is under the the employer’s direct control This is is particularly relevant in the context of employers requesting employees to attend locations other than their usual place of work In Thomas McMahon v Irish Biscuits Ltd and Power Supermarkets T/A Quinnsworth8 the plainti a a a a sales representative with Irish Bis- cuits su ered personal injuries following a a a fall during the course of checking the Irish Biscuits stock in in in a a Quinnsworth supermarket On the the day of his fall the the plainti had asked a a a a a a Quinnsworth employee to move pallets which were blocking the the shelves but the the employ- ee failed to move the the pallets Mr McMahon climbed the the shelves and ultimately fell su ering back injuries Irish Biscuits argued that in in the absence of complaints it was under no obligation to carry out risk assessments The High Court held that the employer had a a a a duty to to ensure that the facilities provided to to employees including by its customers did not threaten the employees’ safety This duty was held to to to extend to to to monitoring the facilities its employees used while on its customer’s premises premises and ensuring that such premises premises provide a a safe working environment This is is an an important consideration for employers sending employees to work at at client/third party locations and/or on on on secondment While the client/third party organisation will owe health and safety obligations obligations to secondees etc such obligations obligations will be in addition to rather than in substitution for the the the obligations owed by the the the employer to its employees under section 8 of the 2005 Act TRAVEL
The de de nition of of place of of work in in the 2005 Act includes vehicles and employers may therefore be liable for for accidents involving employees while they are operating vehicles in in the the the course of their employment or or or for purposes ancillary to work involving vehicles Statistics published by the Health and and Safety Authority of Ireland (HSA) show that of 55 workplace fatalities in in 2015 21 involved vehicles 9 Whereas the the question of whether a a a duty exists to ensure an employee’s safety while in in transit to work has not been the direct subject of scrutiny by the Irish Courts/authorities English case law is is is considered persuasive authority in in Ireland Ireland (due to Ireland Ireland and and and and England both being common law legal systems and also the the history of the the Irish judicial system) In In In Durnford v Western Atlas International Inc10 the employee of an an exploration company successfully claimed damages against his employer when he he su ered an an acute prolapse of an an inter-
vertebral disc due to an inadequate minibus that had been supplied for a a a long journey to to Nigeria to to the third party premises where he he he was was to work The judge found that there was was a a a a a foreseeable risk of of injury to a a a a a person of of ordinary physical robustness as a a a a a result of of the the minibus journey and there was no evidence of of any enquiries made by the employer regarding alternative transport The decision was upheld by the Court of Appeal This serves as as an an illustration of of of the liability of of of an an employer for breach of of of its duty of care in relation to transport abroad Where an an employee is assigned to work outside of Ireland the duty duty of care may include a a a a duty duty to ensure the employee’s safety while travelling to the new place of work Therefore when sending employees abroad it is not just the place of work that needs to to be considered but also the employee’s ability to to safely reach and access the place of work V REGULATION
HEALTH AND SAFETY AUTHORITY
The (HSA) is responsible for for enforcing health and safety at work in in Ireland It provides information to employers employees and and self- employed people on workplace health and safety According to the HSA Annual Summary of Statistics for 2014 56 fatal fatal and 7 431 non-fatal workplace accidents were reported to the HSA in in 2014 This was an an increase of 9 fatal and 833 non- fatal accidents from 2013 11 The HSA has published guidelines on the following issues to assist employers with their obligations:
• Manual Handling of Loads • Display Screen Equipment • Work at Height • Safety signs at places of work • Protection of young persons • First Aid • Night work work and shift work work • Pregnant post-natal and breastfeeding employees Whereas these guidelines are are not set down in in statute they are are considered best practice and regard would be be given to them in any complaint hearing/proceedings involving the subject matter which is provided for in in the guidelines Workers assigned to work outside of Ireland (with contracts governed by Irish law) and workers of other EU member states on on on long-term assignment to to Ireland may be subject to to regulation under the the Irish health and and safety regime and and these guidelines will be relevant in such circumstances 32
DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS • CLIENT/THIRD PARTY ORGANISATION OWE HEALTH AND SAFETY OBLIGATIONS TO SECONDEES