Employer Duties to Non Employees
The important issue of employers’ duties to non-employees is the topic of Finch Consulting’s latest vodcast. Engineer and former HSE specialist adviser Angelica Rutherford-Hacon, and Health and Safety specialist solicitor Sue Dearden discuss the legal duty owed, how that presents in practice, and offer some tips to help you with compliance in this area.
Thank you for joining us, I’m Angelica Rutherford-Hacon, an engineer specialising in health and safety management, with particular expertise in workplace transport, work at height and CDM duties.
I’m here today with Health and Safety specialist solicitor Sue Dearden to discuss the often misunderstood nature of the obligations employers have to people to are not their employees. That includes sub-contractors working on your site, visitors, and even trespassers.
Before joining Finch, I worked at the Health and Safety Executive as an expert advisor and the extent of the duty owed to people who are not employees often took employers by surprise.
As a health and safety lawyer Sue, can you explain what the Legal duty to others is?
In one sense it’s very simple. The duty that employers owe to employees is exactly the same as the duties that they owe to others. It’s a duty that is set out in Sections 2 and 3 of the Health and Safety at Work etc Act 1974. Those two sections are almost mirror image but Section 2 is the duty to employees and Section 3 is the duty to others. Both of them require an employer to take all reasonably practicable steps to ensure the health and safety of… employees, and others. So, the duty is the same.
The difficulty comes with interpreting how that applies because clearly, you have distinct levels of control over an employee – you have much less control over a trespasser who you may not know is coming in, when they’re coming in and what they’re going to be up to. So, the obligation is balanced by this requirement of taking “all reasonably practicable steps.” What’s reasonably practicable is going to be different for each. That is basically the duty.
A common issue that I have come across is in relation to workplace transport management. There will, for example, be a yard adjacent to a building with employees driving forklift trucks in and out of the building to take goods in and bring them out. Then there will be drivers coming in who aren’t employees making deliveries or picking up goods.
Nearly 20% of fatal injuries and 11% of serious injuries in the workplace are caused by people being hit by moving vehicles or equipment at work. You need to be managing the risks to staff who may be in the yard are and also to drivers coming in who often leave their cabs to check loads, or to use the facilities, or to get paperwork signed. It isn’t sufficient just to think about staff and maybe prevent them from going out in the yard without PPE or without instructing them to follow a designated safe route. You have to think about the visitors too, and how you’ll protect their safety.
So, what about trespassers, do you have a legal duty of care to them to and what’s reasonably practicable in those circumstances?
Although under the Health and Safety at Work etc Act it refers to obligations by employers to anyone who may be affected by their business, it’s silent on whether the duty extends to trespassers.
It’s an important question though because a breach of the duty is an offence that can be prosecuted, with high fines imposed upon conviction. There is another law though which doesn’t in itself lead to criminal liability to breach but does make clear that occupiers who aren’t necessarily employers but often are, do have a duty to trespassers. They have had that duty since the 1984 Occupiers Liability Act. That duty arises if
- they’re aware of a danger or have reasonable grounds to believe that a danger exists;
- if they know or have reasonable grounds to believe that someone may come into the vicinity of the danger lawfully or otherwise;
- the risk is one against which all the circumstances the occupier may reasonably be expected to offer some protection.
The Act suggests there will be cases where the duty of care is discharged by putting up signage such as a warning of the hazard identifying what it is. It is a good idea if you put up a warning to put up a picture as well so if you have someone who can’t read they can see what the hazard is. And discourage people from entering premises and taking the risk – for example with fencing.
But there isn’t a duty under the legislation to protect against natural landscape features which is why we don’t have cliffs around the country fenced off although there is a risk of falling. You do as an occupier have to be prepared for children to be less careful than adults. Children will also ignore signs – in fact, some signs warning of a hazard can be an enticement to them to go into the premises. The description of the duty has been read across the duties owed under the Occupiers Liability Act to the Health and Safety at Work Act effectively, and child trespassers, in particular, has been a vexed issue for many years.
I recently read about a fine imposed upon WH Malcolm which manages the rail depot in Daventry where an 11-year-old boy was killed when he climbed a fence with friends to get into the depot. They climbed on top of a train where he came into contact with 25,000 volts in the overhead line above him.
That was at the end of July 2021, resulting in a fine of £6.5 million, which is the highest fine so far I think for a Health and Safety offence which was for failure to prevent unauthorised access to the hazard. The cost of underestimating the extent of the duty to others can be very considerable.
What would your advice be as expert in health and safety, on meeting the duty of employers to others?
I would advise that as an employer you have to take control where any contractors and visitors not in your employment are visiting your premises. Ensure that you
- brief of them of all the associated risks around the parts of the business where they might be visiting,
- provide inductions and information such as risk assessments and site rules,
- highlight signage and the PPE requirements in the areas they will be etc.
so, they are fully aware of all the necessary precautions to take.
Likewise, you must obtain information from these non-employees regarding the risks with their work whilst they’re at your premises so that you can brief your own employees whilst they are working there.
In relation to trespassers, you must ensure the workplace is secure, and take all necessary precautions to ensure that no one can gain unauthorised access or get injured if they do get in.
To conclude, be aware that as employers you have a duty to take all reasonably practicable steps to ensure the safety, not just of your staff, your employees, but also of non-employees, anyone who may be affected by the work that you do, that could come onto your premises lawfully or otherwise or who may be in some way impacted by what you do. You need to make sure that you have identified what the risks are, who might be impacted by them and ensure that you have put in place appropriate controls to manage the risk. The higher the risk in terms of frequency and severity of potential impact, the more that you will need to have done to meet your obligations.
If you are accused of breaching this care of duty to others the burden of proof is on you to determine that you took all reasonably practicable steps. It is not for the prosecution to prove that you didn’t. So, it’s really important that you maintain your records defensively and that you keep your records behind your risk control decisions so that you have the evidence to defend your position if it comes to it.
If you do have any questions or need any help in this area then please do contact us at Finch Consulting and we’ll be happy to help.
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