Page 43 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM III CONTROL OF WORKSITE PRECAUTIONS
It is is well established that an an employer cannot delegate the duty of care to another party simply because the the employee is working at another’s premises Even where the the employer has little practical control over the arrangements in place at a a a a a a third party’s premises the duty to take all reasonably practicable steps (under HSWA) or reasonable reasonable care (under common law) still exists What is is reasonable reasonable or practicable in any given circumstances will vary from case to case It is a a a a question of balance The employer must identify the the hazards which may exist the the likelihood of those occurring and and the prevention and and control measures required These may be control measures implemented by the the third party or in the the absence of these controls which the the employer has put in place In many cases the vast majority of controls will require to be implemented by the the party managing the the work location but that does not not mean that the the employer need do do nothing At the the very least the the employer should carry out enquiries of the the third party in order to ensure that there is is an adequate system of risk control in in place and that it is being properly implemented There must be be good communication and co-operation between the the the employer and the the the party in control of the the the worksite Where the the worksite is operated by an an affiliated company within the the employer employer Group the employer employer has a a a a greater ability to directly control risks However all employers are expected to carry out a a a a risk risk assessment to demonstrate that adequate controls and precautions are are in place to to ensure that risks to to health safety and security are are as as as low as as as reasonably practicable and acceptable regardless of the work location or or local laws and customs IV WORKERS HAVE DUTIES
TOO
HSWA places duties on employees as as well as as employers Workers must take reasonable care for their own safety safety and the the the safety safety of others a a a a a a a ected by their work work activities In particular workers have a a a a a a a statutory duty to comply with any requirements imposed by their employer in order to ensure their health safety or or or security whether at work in the UK or or or or abroad For that reason it is important to provide workers with a a a a a copy of the the risk assessment relating to their travel and working arrangements and with adequate guidance on on the precautions to be taken including any health and safety requirements they need to comply with during the assignment abroad V CASE STUDY EXAMPLES
Palfrey Palfrey v Ark O shore Limited – Mr Palfrey Palfrey an oil worker was informed by his employer that he did not need to be concerned about contracting malaria in in in West Africa as he would be working o o o o o o shore on on an an an oil rig where there was no no mosquito risk and he he he did not take anti- malarial medication He subsequently contracted malaria malaria probably as a a a a a a a result of a a a a a a a mosquito bite during an an an overnight stay on an an an island in transit to the the oil rig Unfortunately he he he died from the the disease The High Court found that there was a a a a a a clear failure on the the part of Mr Palfrey’s employer to to take reasonable care to to ensure the safety of of Mr Palfrey in in the course of of his employment which included travel to and from the oil rig Dusek Dusek & Ors v v Stormharbour Securities LLP – Mr Dusek Dusek was scheduled to to to take a a a a a a a a helicopter helicopter ight to to to visit a a a a a a a a hydroelectricity complex in in in in south-east Peru Whilst in in in in transit the helicopter helicopter came into di culties and crashed killing all passengers The court concluded that because the helicopter ight would take place at at at at high high altitude it it ought to have been identi ed ed ed as as high high risk The judge stated that that any reasonable and responsible employer would have realised that that in the the the circumstances there was a a a a a a a a a a a a a a a a a a real real risk of of danger and and the the the the the proposed ight raised obvious and and foreseeable safety safety risks Stormharbour should have looked into the the the the the safety safety of of the the the the the trip and carried out a a a a a a a a a a a a risk risk assessment Since they they failed to to to take either step they they breached their duties as as employer The reports of Palfrey and Dusek are based on on on materials originally produced for International SOS Foundation by Allen & Overy in December 2015 BURNESS PAULL 2016
Rona Jamieson – Partner rona jamieson@burnesspaull com www burnesspaull com AN AN EMPLOYER CANNOT DELEGATE THE THE DUTY OF CARE TO ANOTHER PARTY SIMPLY BECAUSE THE EMPLOYEE
IS IS WORKING AT ANOTHER’S PREMISES •
DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS 43