Employer's duty of care and coronavirus

29 May 2020

As a business owner, you owe a duty of care in the workplace to your employees under health & safety legislation.

And this has never been more important than during the recent pandemic. If you need support, you can refer to our coronavirus business advice centre. You can also call us on 0818 923 923 for support.

With employees set to return to work in the months ahead, now is a good time to review your procedures and ensure you’re providing a safe working environment for your workforce.

And in this guide, we explore how you can do that while remaining compliant with Irish legislation.

What is duty of care?

Under the Safety, Health and Welfare at Work Act 2005 the standard duty of care meaning places an obligation on your business to do everything ‘that is reasonably practicable’ to protect the mental and physical wellbeing of your employees.

Under common law, the employer’s duty is said to be a non-delegable duty of care—this means you cannot expect employees to discharge your duty by themselves and on your behalf.

If you have staff on a regular wage working full or part-time, then they’ll have a contract of employment with your business. When they sign that, from that moment you have a duty of care agreement towards your employees.

Legally, the employer’s duty of care in Ireland involves taking reasonable care to ensure the:

  • Physical health of employees.
  • Psychological health of employees.
  • And that no harm comes to the individual at work.

Under common law, your duty of care involves ensuring the workplace is safe and that safe systems of work are in place.

The common law duties supplement the statutory duty under the health & safety legislation.

Of course, if you don’t follow these legal obligations it may result in claims by employees to the Workplace Relations Commission or the civil courts.

Your duty of care policy

You should establish a policy to support your business’ legal requirements.

In this, you can address your workforce with how you intend to promote high standards of safety and welfare.

Because along with your health & safety commitments to employees, you must remember to protect them from issues such as bullying in the workplace, harassment, and stress.

It’s also increasingly common to focus on mental health and employer’s duty of care now includes safeguarding employee mental health—you can support your staff, for example, with an employee assistance programme (EAP).

You can outline your commitments in your policy. Include details such as:

  • The chance for training to ensure safety across your workforce.
  • Offering specialised equipment (for example PPE— personal protective equipment).
  • Indicating you’ll quickly deal with any grievances your employees raise.
  • In the event of misconduct allegations, you’ll take them seriously—and investigate the matter.
  • Ensuring employees don’t face discrimination, bullying, or harassment.
  • Monitoring working hours to avoid burnout.

So, as you can see from above, it’s a legal requirement you must follow. But ensuring the safety of your employees is also good business practice.

Sometimes, businesses ask us is there an employer's duty of care travelling to work? Commuting does not generally fall into the employer’s health & safety obligations.

If employees are required to travel somewhere other than their normal place of work, you will need to ensure that the journey is safe.

By addressing your responsibilities, you can provide your workforce with a reason to engage in high standards of productivity. And this can lead to an increase in staff engagement.

Negligence and duty of care

It’s essential to follow the above practices to ensure you’re in line with Irish laws. Failing to follow your duties as an employer can lead to significant consequences.

Health & safety claims are often linked to personal injuries claims by employees who suffer accidents at work.

So, it’s a good idea to understand what counts as negligence. While employers do not owe an absolute duty of care to their employees, you could be found liable for the consequences of failing to prevent reasonably foreseeable workplace hazards.

To avoid negligence claims you must take steps that a reasonable and prudent employer would have taken to prevent workplace accidents.

The courts have consistently found that an employer will not be liable if the injury suffered by the employee was not a reasonably foreseeable result of the employer’s negligent conduct.

These are examples of breaching duty of care:

  • Not providing proper training.
  • Failing to provide properly functioning equipment at work.
  • Allowing equipment to become faulty and dangerous.
  • Failing to adjust a working environment so it’s safe and secure.
  • Not taking a staff complaint seriously.
  • Failing to resolve a grievance.
  • Ignoring acts of misconduct.

If there’s any action that’s viewed as detrimental to an employee’s health and welfare, then that can be seen as a breach of your duty of care.

This can also result in a claim of constructive dismissal—if they resign and claim that the they had no choice but to leave their position due to the unsafe working conditions.

So, it’s essential to keep in mind your duties as an employer to avoid any negligence-based claims. Regular investigations, such as with fire risk assessments, are one way to avoid this.

Employer’s duty of care during the coronavirus lockdown

With current global events, it’s essential you take precautions to ensure the health & safety of staff.

The duty of care in the workplace due to coronavirus is a high priority—there are legal obligations you must adhere to. This is whether they’re working from home, or attending your premises.

In Ireland, you should encourage employees (where possible) to work from home. You can take steps to support this new measure. Here’s advice for discharging the duty of care when working from home:

  • Providing a work laptop.
  • Ensuring staff have a good internet connection.
  • Providing staff with support regarding their mental and physical health.
  • Planning work that’s safe.
  • Performing risk assessments—or encouraging staff to undertake them in their home environment.
  • Offering training materials.
  • Providing information if there’s an emergency.

Remember, it’s your duty to safeguard the welfare of your staff—such as informing them how to stay healthy during the pandemic.

So, keep in touch with them for regular updates. Such as if there are any risks facing them while working from home.

It’s also important to ensure they have the right type of equipment to complete their roles. Which may involve downloading new software, installing new equipment, and taking regular breaks to avoid the likes of repetitive strain injuries.

Current Irish lockdown regulations

The Irish government announced in May 2020 that the lockdown regulations will begin to ease on 18th May 2020.

However, it’s important to note there are still limitations on travelling to work.

Only essential workers can attend work. But the Irish government has provided a roadmap for reopening society and business (1st May 2020). There are five phases to this, the first starting on 18th May 2020.

The final phase is on 10th August 2020 and will potentially see the country fully lifting social and business restrictions.

Employee responsibilities during coronavirus

Your members of staff also need to keep in mind their responsibilities, too. But you should remind them to do so, given the unfamiliarity of current times.

You should make sure they understand this, so provide them with details on what they must do. But, in basic form, they must:

  • Respect your instructions and respond to them when you ask for cooperation.
  • Protect themselves (and others) from harm during working hours.
  • Report any injuries to you as soon as possible.
  • Respond to any of your business requests, such as providing a health report.

Your employees should be cooperative and take the recommended steps to provide a suitable and safe working environment.

Returning to work after coronavirus

Of course, your duty of care on the return to work after the coronavirus lockdown will be one of your biggest priorities.

The Return to Work Safely Protocol sets out mandatory health & safety measures that all businesses have to put in place.

You should adopt practices that’ll ensure the safety of your workforce, given the restrictions and limitations the coronavirus pandemic has imposed.

It’s a reasonable expectation to make changes to your working environment to support your staff’s welfare. Rushing a return to work without the correct procedures in place could lead to the spread of the coronavirus.

So, it’s essential to take into consideration your long-term requirements regarding the issue. In short, you should aim to:

  • Appoint a lead worker representative who will be your liaison between management and staff. It’s vital to have the input of staff when developing your coronavirus measures. And they’ll ensure staff stick to the policies you put in place. You will need to provide training to this representative on carrying out this role.
  • Develop a covid-19 response plan.
  • Regularly update your workforce, and any safety representatives, with any measures you’re introducing.
  • Offer an induction training day when employees return—and offer additional training in the event of business/government updates.
  • Keep a record of group activities—this can help you to understand the possibilities of spreading the virus.
  • In the event an employee develops symptoms of coronavirus, you must respond rapidly—have procedures in place to address this.
  • Have a plan in place to deal with suspected cases of coronavirus, so you can communicate updates to your employees.
  • Provide a return to work form to employees at least three days before they begin working as normal. This can help you determine whether you need to stagger the return of some employees—and how you can provide effective safety in your workplace.

You should also adapt your plan as governmental changes come into effect. This’ll likely be ongoing, so keep track of the latest developments from the government.

Or refer to our 24-hour HR advice line for guidance—we can talk you through any concerns you may have.

Duty of care examples

So, as you can see, between legislation and common law, employers owe various duties to their employees and some of the most common examples are health & safety-related.

As the return to work is now underway, you may find the following list of ways to safeguard employees useful:

  • Offering the Temporary COVID-19 Wage Subsidy Scheme to employees during the coronavirus outbreak.
  • Performing regular health & safety assessments of your workplace. This can maintain high standards, preventing unnecessary injury while promoting employee confidence.
  • Providing effective display screen equipment (DSE) to avoid injuries such as eyestrain and repetitive strain injury (RSI).
  • Providing reasonable accommodations for employees with disabilities, ensuring they can complete their job effectively.
  • Ensuring staff don’t overwork (presenteeism), which can result in high levels of stress.
  • Enforcing Irish laws regarding discrimination so that employees can work confidently for your business.

You should follow Irish health & safety laws to maintain these standards. And perform regular risk assessments to ensure you maintain high standards.

Need our help?

If you need any assistance with understanding your duty of care, get in touch. We’re here to help: 0818 923 923.

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