The Duty to Provide a Safe System of Work

Current political trends have perhaps cast a renewed focus on traditional, non-European, legal principles.

In English and Welsh law there are four established legal principles regarding the employer-employee relationship:

1. The duty to provide a safe system of work;

2. The duty to provide a safe place of work;

3. The duty to provide a competent staff of men; and

4. The duty to provide adequate plant and material

These four duties are arguably the cornerstone of the law regarding health and safety at work, and exist independent of any European-based employment laws.

Perhaps the main principle regarding accidents at work is the duty of the employer to provide the employee with a “safe system of work”, which we will explore in this article.

This rather broad category was partially defined in the case of Speed v Thomas Swift & Co [1943] KB 557:

“…the physical lay-out of the job – the setting of the stage, so to speak – the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices and the issue special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet the circumstances which arise”

The duty is not limited to devising a safe system of work but also to ensure its implementation so if there is a safe system on paper, but the reality is that employees are not following it, the employer is likely to still be held liable under this duty for an injury at work caused by another employee not adhering to the system. To this extent there is likely to be a delicate balancing act with the employer’s own duty to ensure a safe system is actually being implemented and that of vicarious liability for the negligent actions of another employee – here we are looking at the employer’s own, personal, duty to ensure the proper implementation of a safe system.

In the case of McDermid v Nash Dredging and Reclamation Co. Ltd [1987] AC 906 a ship-hand was injured when the captain failed to follow a safe system of determining when safe to begin moving forwards. Although questions of vicarious liability for the captain’s actions was considered, ultimately the House of Lords held that the duty to provide a safe system of work is non-delegable in the sense that the employer must not only devise a safe system of work but will also be liable if it is not in operation (therefore responsibility for it being implemented cannot truly be delegated to another employee). The case suggests a need for a continual “hands-on” approach by employers in ensuring systems of work are introduced and followed. Leaving another employee to devise and enforce a safe system of work may not merely result in a finding of vicarious liability but rather a direct failure of the employer’s part to provide a safe system of work.

The need for an employer to think carefully about the system of work, and likely demands upon the employee, was evidenced in the case of General Cleaning Contractors v Christmas [1953] AC 180 in which the Court held the employer to be negligent in a situation whereby the employee had not shown great heed for his own safety but he was adhering to the system provided by his employer. Although the employee could have potentially improved upon the employer’s prescribed system, fault nonetheless rested with the employer for not having a safe system in place.

A tricky issue that can arise in practice is if the claimant employee was him/herself in control of the system. In Ross v Associated Portland Cement Manufacturers Ltd the Court placed much emphasis on the experience of the employee, not only generally, but regarding the bespoke task in question. In Ross there did not seem to be any evidence to suggest the claimant employee was particularly familiar or experienced in the task involved and that seems to have been a key feature in the appeal succeeding, but it is worth noting the claimant was still held one third negligent. In cases therefore where the claimant appears to have been in charge it will still be necessary to consider their knowledge and/or experience of the task as inexperienced employees who are left to devise a system themselves are unlikely to absolve the employer of liability though there may be reductions in contributory negligence if their actions or decisions are plainly unsafe.

Another issue that can often arise is the question of what happens if the system of work in place is the safest one the defendant can think of, and the employee claimant cannot suggest a safer one? This question was considered in the case of Morgan v Lucas Aerospace Ltd (1997) in which the Court held the Claimant did not need to put forward the supposedly safer alternative system of work – merely to prove the system in place was not safe. Therefore, if an employer has provided the safest and/or best PPE available, for instance, but the system as a whole remains dangerous, the employer will need to look again at the whole system as to whether it can be made safer in other ways.

What the cases regarding a safe system of work appear to show is that the starting point, above employee experience; employee diligence; actions of other employees; and so forth, is whether the system itself is safe and whether the employer has taken suitable steps to ensure its implementation, which, considering such cases, seems to be a broad and far-reaching duty.