COVID-19: An Appraisal of an employer’s Duty of Care in respect for the safety of an Employee.

As the globe is greatly waned down by the outbreak of the Covid-19 pandemic, the economy activities are set to be back on track with certain preventive measures put in place. The Employer’s duty of care which entails the maintenance of a healthy and safe work environment, provision of hazard information proper safety equipment, training and competent supervision under the law in order to safeguard the health and safety of the workers at their workplace in this present circumstance is of great concern.

The laws enacted to govern contract of employment occupy a position of considerable importance. This is as a result of the tremendous contributions in which workers can make to national growth and development. Flowing from this, there are plethora of statutes governing the safety issues whereas health and safety are not only governed by legislations. Thus, Common law makes provision, for imposing the duty of care by the employers to protect the employees. Also, it is now a term implied into contract of employment, binding the employers to ensure proper safeguard of their employees.

In another breath, the employers can be liable for harm or injuries suffered by an employee through vicarious liability which is bound to arise when an employee injures a fellow employee in the course of duty. The employer is required to be responsible; Another arises where there is a statutory duty imposed on the employers to safeguard the safety of  his employees such as the Health and Safety at Work Act 1974 and lastly, the imposition of personal duty on the employers to take reasonable care of the employees’ safety with regard to work as the classic exposition of this duty was asserted by Lord Wright in Wilson and Clyde Coal Co. Ltd V English (1938) AC 57 where the plaintiff was injured at the defendant’s coal mine. He was travelling through the pit at the end of a day shift and was crushed when the haulage plant was set on motion. The equipment should have been stopped during travelling time. The defendants employers argued that they had discharged their duty in providing a safe system of work by appointing a competent and qualified manager. It was held by the House of Lords that the employers were liable as they could not avoid their duty to provide a reasonably safe system of working by delegation to a competent employee.

An obligation is imposed on the employers to select competent employees and a correlative duty to give them the proper instructions in the usage of the provided equipment and necessary of conducts of the employees as not to cause injury to fellow workman and failure to do so, then the employers may be liable. See the case of Hawkins V Ross Castings Ltd (1970)1 All ER 180.

Adequate Safe Plant and Equipment: 

The employers are also saddled with the duty to take reasonable care by ensuring proper provision of required appliances and the maintenance of the provided appliances at work. This is pursuant to Section 1(1) of the Employer’s Liability (Defective Equipment) Act 1969. See the case of Smith V Baker (1891) AC 325 362.

It is a mandatory obligation for the employers to devise a suitable system, instruct the employees on what to do and supply implements they may require. Although this obligation is in two folds; it is that employers must tell their workers the locations of the safety equipment on the one hand while on the other hand, the employers must strike a balance between the obvious and the non-obvious of the workers are deemed to be cognizance of and what is required to be disclosed to the workers as regard to work. It is pertinent to note that employers may not be able make effective provision of a safe system of work unless proper instructions and reasonable supervisions are made to the workers. More so, the concept of safe system has been extended to cover areas incidental to the work. See the case of Bradford V Robinson Rental Ltd [1967] 1 All ER 267.

Similarly, there are already statutory provisions enacted to safeguard health and welfare of the workers by the employers. The Factories Act is a major statute amongst other statutes within the confines of the Labour Jurisprudence.

An employee cannot institute a legal action or seek redress unless the provisions of contract of employment expressly provided for instances such as breach of the employer’s duty of care. It was clearly affirmed in the case Groves V Wimbrone (1898) 2 QB 403 415-416, Vaughan Williams LJ said;

 “it cannot be doubted that where a statute provides for the performance by certain persons of a particular duty, and someone belonging to a class of persons for whose benefits and protection the statute imposes the duty is injured by the failure to perform it prima facie and if there be nothing to the contrary, an action by the person so injured will like against the person who has so failed to perform the duty.

The statement was reaffirmed by Lord Cairns in Alkinson V Newcastle Water Works Co. (1877) 2 Ex. D 441 that; ” look at the general scope of the Act and the nature of the statutory duty; and in addition, one must look at the nature of the injuries likely to arose from a Breach of that duty, the amount of the penalty imposed for a breach of it and the kind of person upon whom it is imposed before one can come to proper conclusion as whether the legislature intended the statutory remedy to be the only remedy for the breach of the statutory duty”

In light of this, an employer who suffers injury at work may either obtain damages at Common law or claim compensation under the Statutory known as Workmen’s compensation. This may occur either as a result of negligence of employers’ duty of care or breach of duty as stipulated by the statute. It is now established that an employer is under a duty to take reasonable care to ensure the workers are not exposed to risks or injuries as a reasonable employer would take in the same circumstance. See the case of Priestly V Fowler (1837) 3 M & WL.

For any injured employer to succeed in a legal action, instituted for damages suffered he must not only prove negligence i.e. breach of duty by the employer but also show that such negligence caused or materially contributed to his suffering the injury. Also, there must be proof to the satisfaction of the Court,that there exist a casual connection between the employer’s negligence and injury suffered. The Standard of proof in this case is a balance of probabilities as opposed to beyond reasonable doubt as in Criminal cases. However, it is not necessary to prove that the employer’s negligence was the sole cause of the injury; it is enough to show that the employer’s breach of duty materially contributed to causing the injury. See the case of McGhee V National Cotton Board (1973) 13 KIR 249 where the House of Lords held upon  evidence, that the employer’s default contributed materially to the injury.

Similarly, defenses were also provided for at Common law for the employer in a legal action against him either for negligence or breach of his duty of care under Statute. These were the defenses of Voluntary assumption and Contributory negligence

 The existence of risks or dangers with a particular job brought to the knowledge of an employee for a long time is deemed to have been consented to run the risks by the employee. See the case of Smith V Baker (1891) AC 325. Although this defense is only applicable to  the employer if the claimant/employee is the sole cause of his own misfortunes.

This defense can be employed by the employer if the injury is occurred either as a result of incompetence of the employee or disregard of the provided safety measures. See the case of Butterfield V Forrester (1809) 11 East 60 ; Smith V Balestock and co Ltd (1945) 1 ALL ER 331.

Having considered the relevance of employers’ duty to employee’s safety, the present Covid-19 circumstance calls for strictly adherence to the preventive measures not only to safeguard the safety of the employees as the employers and customers are not an exception. Below are few of my recommendation to be employed to ameliorate the widespread of the pandemic in course of business activities in workplace:

(i) Employers should make sufficient provision and proper usage of infection control materials (such as hand sanitizer or other personal protective equipment) available in prominent locations throughout workplace.

(ii) Employers should endeavor to increase communication to workers and customers about COVID-19 and measures you are taking for prevention and Post signs asking ill clients or customers to stay away from the workplace if theyre experiencing any symptoms of the virus.

(iii) Employers should ensure the workplace layout is restructured to minimize physical contact between employees and customers i.e social distancing.

(iv) Employers should ensure to keep the environment clean and use appropriate disinfectants to clean items like the desk, work surface, phones, keyboards and electronics, cash registers, keypads, elevator buttons, customer service counters and restaurant tables more often, especially when visibly dirty.

(v) Employers should not hesitate to remove employees from workplace where circumstance warrant doing so.

From the foregoing, it can be deduced that the essence of the employer’s duty of care to safeguard the employee at work prior to and during this crucial period  can neither be underrated nor over emphasized. It is trite law that the employers and employee are saddled with respective duties in course of contract of employers under the statutes or conditions of the contract. Similarly, the law also provides for means of redress where necessary, maybe a breach of employers’ duty or negligence of the employer with regard to work. However, the employers and employees are advised to promote their safety amid Covid-19 pandemic by ensuring proper provisions and strict adherence to the laid down preventive measures so as to facilitate a  mutual environment.

Adesujo Jamiu Ayobami is a law student of Osun State University. He has  core interest in Labour matters. He can be reached for comments, observations and suggestions via 09097069415/[email protected].

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