EMPLOYERS’ LIABILITY CIVIL AND CRIMINAL ASPECTS
FACTS • In the UK there are on average more than 300 workplace deaths annually • Work related illness is costing more every year – now up to £18bn – around 2.1% -2.6% GDP
COST OF WORK RELATED ILLNESS AND INJURY • UK has a good record within Europe • Developing area of liability – work stress • Regulated by Europe • Ever increasing common law and statutory duties • Growing body of case law in healthcare occupations • Little enthusiasm for corporate manslaughter
OVERVIEW • Different areas of liability – note different objectives • Civil claims • Health and safety at Work issues • Other criminal matters
COMMON LAW: some examples Duty to provide safe work systems and training on how to use them Alexander v Midland Bank Mountenay v Bernard Matthews Work stress: Walker v Northumberland CC Barber v Somerset CC Sutherland v Hatton
INDEPENDENT Paid lump sums Uses own tools Chooses hours Contract for service Controls work method Hired for the job Makes own deductions Own boss with own business EMPLOYEE Employer pays salary Employer provides tools Employer dictates hours Contract of service Employer controls Employer hires and fires PAYE Integrated into business VICARIOUS LIABILITY Employee or Cndependent contractor?
Employer is liable for: Wrongful acts committed in course of employment • What is the course of employment? • Wrongful way of carrying out an instruction? • Acting outside what he was employed to do? • Forbidden acts? • Frolic of his own?
CIVIL LIABILITY • Negligence – duty – breach – damage • Occupiers liability – breach of OLA - frequently brought by employees • Breach of statutory duty – more complex but useful for employees. • Other claims – breach of contract of employment and common law duties arising from it
Work Stress • "Physical, emotional and mental strain resulting from the mismatch between an individual and his/her environment", which results from a ‘three way relationship between demands on a person, that person's feelings about those demands and their ability to cope with those demandsStress is most likely to occur in situations where: demands are high; the amount of control an individual has is low; and, there is limited support or help available for the individual. Bynoe G. “Stress in women doctors”. Br J Hosp Med 1994; 51(6): 267-8
Evidence • In a 2005 survey of 209,000 NHS employees, 36% said they were suffering from work-related stress, the same percentage as 2004, but lower than the 39% in 2003. • In the NHS there is a sickness rate of around 11.6 days per employee, higher than the 10.7 average for public sector employees.
Wales NHS Staff Survey • 39% of participating NHS staff believed they were suffering from work-related stress. • Those under the most stress worked in harrowing areas of healthcare such as cancer services. • Majority of the 33,000 participating staff complained that they do not have enough time to complete their work properly. • Half said that they regularly work unpaid overtime. • 6% of staff who responded said that they had experienced physical violence in the workplace.
Junior Doctors • 2004 study • 2,727 responded, • Of 1,047 junior doctors who were considering staying in medicine but practising outside the UK, 41% gave the main reason as poor working conditions. • 279 doctors were seriously considering relinquishing medicine altogether, 75% of whom gave working conditions as their reason.
UCL Study • Study over 12 year period, investigated the same doctors when applicants to medical school or medical students. • Concluded that approaches to work later in life could be predicted by study habits and learning styles at the point of application to medical school, and final year of medical education. • Differences of approach to work and individual perceptions of workplace ethos appeared to reflect stable, long-term differences in the personalities of the doctors themselves. (McManus, IC, Keeling, A, Paice, E, “Stress, burnout and doctors' attitudes to work are determined by personality and learning style: A twelve year longitudinal study of UK medical graduates”, BMC Medicine 2004, 2:29 )
Case Law • Johnstone v Bloomsbury Health Authority 1992 • Junior hospital doctor brought a claim for work stress suffered because of long working hours
Sutherland v Hatton 2002 CA • The ordinary principles of employer’s liability apply to work related stress claims • Signs of stress in a worker must have been obvious to the employer • An employer who offers a confidential counselling service is likely to have a complete defence to a stress related claim by a worker • An employer can usually assume that an employee can withstand normal job pressures (unless he knows of a particular problem or vulnerability)
Barber v Somerset CC 2004 HL • House of Lords put increased emphasis on duty of employers look out for for signs of stress and to keep themselves abreast of developing knowledge of occupational stress and protective measures to alleviate it. • Former teacher awarded £91,000 for loss of earnings plus £10,000 for pain, suffering and loss of amenity in a claim for work-related stress which led to depression and early retirement. • Regularly worked 60 to 70 hours a week and the pressures of an OFSTED inspection did not help.
McLeod vTest Valley Council • Senior housing benefits officer suffered a mental breakdown and psychiatric injury in 1994 as a result of being "bullied, verbally abused and harassed by Susan Claydon, his line manager who was ..... set on securing his resignation or termination". Settled out of court for a sum in excess of £200,000 in January 2000.
Hartman v South Essex Mental Health and Community Care NHS Trust etc CA 2005 • Six cases heard together by the Court of Appeal reemphasise that liability for psychiatric injury caused by stress at work is in general no different in principle from liability for physical injury. • It is foreseeable injury flowing from an employer’s breach of duty which gives rise to this liability. • The mere fact that an employee suffered stress at work and that the employer was in breach of duty in allowing that to occur does not mean that the employer is liable to the employee.
Hiles v South Gloucestershire NHS Primary Care Trust 2007 • The High Court ruled that the Trust was in breach of the duty owed to a health visitor to take reasonable care to avoid causing injury to her health, • Senior manager had become aware that difficulties she was experiencing at work were causing her to have psychiatric problems. • On commencing work she was told by her then manager that her workload would not exceed responsibility for the cases of 200 children. • When a new manager was appointed, workload increased to cases of 230-240 children. • She broke down in tears during an appraisal interview with her manager, and she felt under still more stress, eventually suffering a psychiatric breakdown.
New Development • An employer can be liable in respect of an act of harassment committed by an employee in the course of his or her employment in breach of Protection from Harassment Act 1997 s.1 and the victim will be able to recover damages from the harassor's employer (under Protection from Harassment Act 1997 s.3) for anxiety caused by the harassment, and any financial loss resulting from it, even if there was no negligence on the part of the employer; and • More generally, an employer can be vicariously liable for breach of a statutory duty imposed on his employee.
Majrowski – Facts of case • M, a clinical auditor co-ordinator, was bullied and intimidated by his manager • She was rude and abusive to him in front of other staff, and excessively, critical of his time-keeping and work, imposed unrealistic performance targets for him and isolated him by refusing to talk to him. He alleged that this treatment was fuelled by homophobia, as he is a gay man. • The Trust undertook an investigation and concluded that harassment had occurred. • M brought a claim for damages against the Trust under s.3 of the Act. He made no claim against Mrs Freeman herself. Nor did he bring claim against the Trust for negligence or breach of his contract of employment. His claim was based exclusively on the Trust's vicarious liability for Mrs Freeman's alleged breach of the statutory prohibition of harassment.
Majrowski v Guys and St Thomas’s NHS Trust 2006 HL • this decision will make it easier than previously for an employee to make a bullying related claim against his employer • under Protection from Harassment Act 1997 s.3 no need to prove psychiatric injury, which would be needed to succeed in a "normal" personal injury claim. • victim only needs to show that he has suffered anxiety and distress - quite a low medical hurdle.
KEY POINTS FOR EMPLOYERS • Watch out for signs of stress • Report to someone senior • Once employer’s representative knows of the problem employer will be liable for breach of duty • Safe systems of work are essential • Employers must adjust for people with disabilities
BREACH OF STATUTORY DUTY Claimant must prove: • Parliament intended the statute to support civil liability • The statutory duty was owed to the claimant • The statutory duty was imposed on the defendant • The defendant was in breach of the duty • The damage was of a type that the statute was designed to prevent • The injury was caused by the breach Main advantage to claimant is possibility of strict liability
WHICH STATUTES? • Not the general duties under the Health and Safety at Work Act 1974 • Regulations made under the Act • Other statutes and regulations e.g. COSHH – look for precedents • Note the importance of statutory interpretation here. Everything depends on wording of statutory provisions
SOME EXAMPLES • Look for use of “must” and “should” • Look for “reasonably practicable” • Compare negligence claims with breach of statutory duty claims to find advantages for claimants
MANUAL HANDLING OPERATIONS REGS 1992 • “Each employer shall – • So far as is reasonable practicable, avoid the need for his employees to undertake manual handling operations at work which involve a risk or their being injured. • Where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of being injured” -
MANUAL HANDLING (cont) • “Make a suitable and sufficient assessment of all such mho. to be undertaken, having regard to the factors which are specified in schedules 1 and 2. • Take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such MHO to the lowest level reasonably practicable • Take appropriate steps to provide any of those employees…with general indications, and where reasonably practicable precise information about weights and centres of gravity of loads”.
QUESTION ONE • Nurse Jones, an SEN of ten years’ experience, worked for Barsetshsire NHS Hospital Trust. She says that she never attended a course on lifting and that she knew about how to lift patients because by experience and watching other nurses.
Continued • One morning she tried to life Fred Smith, a stroke patient weighing 12 stone to move him further up the bed and make him more comfortable. She did this single handed, and as she did so she hurt her back, and had to sit down for an hour to recover. The incident was reported to the sister in charge but she was to busy to enter it in the accident book
Continued • Nurse Jones returned to work the next day because there were staff shortages, but the pain become much worse and at the weekend she was forced to stay in bed. Specialist medical advice confirms a serious back injury and that she will not be able to continue nursing. • She has retired on grounds of ill-health and receives a disability allowance of £125 a month and income support.
continued • After 2 years Nurse Jones decides to sue her employer for damages. The medical experts agree that the injury she sustained was inevitable because of generative changes in her spine, that she could have suffered the same injury during some other activity such as shopping, and that at best she could have expected three years free of pain.
Continued • Explain the legal basis of Nurse Jones’s claim. • How would you advise her to fund the claim? • Is the claim likely to succeed? • How much do you think she will receive by way of damages if the claim succeeds?
SMOKING: NEW DILEMMAS FOR EMPLOYERS Health Act 2006 • s.7: Offence to smoke in a smoke free place • S.8: (1) It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking. Defence to show that • (a) that he took reasonable steps to cause the person in question to stop smoking, or • (b) that he did not know, and could not reasonably have been expected to know, that the person in question was smoking, or • (c) that on other grounds it was reasonable for him not to comply with the duty.
Tort claims • Negligent exposure to smoke • Breach of statutory duty - COSHH Regulations under HSW Act
Employment law • Discrimination claims arising from failure to impose smoking ban • Constructive dismissal claims arising from imposition of smoking ban • Protection from Harassment Act 1997 claims – Majrowski v Guys and St Thomas’s NHS Trust 2006
LEGAL OPINION • A factory operates a no-smoking policy and either require employees to smoke outside the premises or provide a smoking room where this is considered necessary. • It requires its employees to smoke outside the premises and the hospital grounds, by standing the street
continued • The Union says that it is dangerous for them to stand in the street, especially at night because they risk being mugged, and argue that it looks bad for staff to be seen in the street smoking cigarettes. • The factory owners seek your advice as to whether they should allow employees to smoke on hospital premises – perhaps by providing a shelter in the grounds.