In Short
- Duty of care: Employers must take reasonable care to protect employees from foreseeable injury, but they don’t need to guarantee complete safety.
- Risk assessments: Identify hazards, assess risks, and implement measures to eliminate or reduce risks.
- Employee consultation: Regularly consult employees about workplace hazards and risk reduction strategies.
Tips for Businesses
Conduct regular risk assessments to identify and mitigate hazards. Keep written records of risk assessments, safety training, and consultations. Regularly engage employees in identifying potential risks and solutions. Implement and enforce a clear WHS policy to maintain a safe working environment for everyone.
The term ‘duty of care’ is used in many different contexts. Professionals owe a duty of care to their clients or the people to whom they offer services. As an employer, you owe a duty of care to your employees. The fundamental obligation employers owe is to take reasonable care to protect the employee against foreseeable injury arising out of their employment. This article discusses the:
- meaning of duty of care in an employer/employee relationship;
- fundamental obligation employers owe their employees to ensure their safety; and
- extent of this duty.
The Employer/Employee Duty of Care
An employer’s duty of care covers a number of areas. It includes duties to provide competent staff with:
- a safe place to work;
- proper and adequate materials;
- information, training and instruction; and
- a safe system of work and supervision.
The duty to take reasonable care to protect an employee against foreseeable injury arising out of their employment is especially important because it is non-delegable. This means that, as an employer, you cannot avoid the duty by delegating it to a third party.
What is the Standard of Care?
The standard of care an employer owes their employee is something you should be aware of. The term ‘reasonable care’ does not mean you need to guarantee the safety of each of your employees. In fact, the concept of reasonable care will vary across industries and between businesses.
While you must take reasonable care, employees must also take personal responsibility. The duty of the employer does not mean employees do not have a duty to look after their own safety. This means that employees need to:
- act prudently; and
- comply with any directions to enforce and maintain their safety.
In making sure you have taken all reasonable steps to protect your employee from foreseeable injury, you should not only consider the work environment but also the nature of the tasks.
Risk Assessments
A valuable tool that will assist you in your duty to take reasonable care is a risk assessment. A risk assessment is a systematic process of identifying, addressing and effectively controlling potential hazards and risks in the workplace.
A risk assessment will generally involve:
- identifying potential hazards and risks;
- assessing the severity of the risk; and
- developing suitable processes to eliminate the hazard and risk, or where it cannot be eliminated to reduce it.
You should also keep written records of risk assessments, which outline the hazards and risks that were identified and the strategies you developed to eliminate or reduce them.
Health and Safety Practices
As an employer, it is not just your role to establish safe practices and processes for your employees. You must also make sure these are enforced and maintained amongst your workforce. This may involve providing your employees with regular and adequate health and safety training. It is important to tailor your health and safety training to the hazards and risks identified in your business.
You should also keep written records of any training sessions that have been conducted, which include what was covered in the session when it was conducted and employee attendance. You should also ensure that any workplace health and safety (WHS) policies are adhered to. If you do not have a formal WHS policy, you may want to consider implementing a formal policy.
Continue reading this article below the formShould I Consult My Employees?
You should regularly consult your employees about:
- possible hazards and risks in the workplace;
- approaches to eliminate or reduce those risks; and
- any proposed changes that may affect employee health and safety.
Employees are well-placed to identify potential hazards and risks, as often, in completing their employment duties, they may be directly exposed to such risks. As such, employees will likely have valuable insights regarding possible mitigation or solutions to these risks.
Regular consultations may assist you in identifying pre-existing and developing hazards and strategies to reduce risks you may not have otherwise identified. It will also assist you in meeting your health and safety obligations.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
It is a legal requirement for all employers to take reasonable care to protect their employees from foreseeable injury. As an employer, you do not need to guarantee the safety of your employees, but you do need to take reasonable steps. Your employees must also take personal responsibility for their own safety and follow the processes and practices you put in place. However, even the best practices and processes may still injure employees. Therefore, you should always take out the appropriate workplace insurance to ensure you are fully covered if one of your employees is injured.
If you need help understanding your duty of care, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
As an employer, you have a duty to take reasonable care to protect an employee against foreseeable injury arising out of their employment. This does not necessarily mean that you have to eliminate every single risk arising out of their employment. You do, however, need to take reasonable steps to protect your employees, and what is reasonable will depend on your business itself.
Yes. You should regularly consult with your employees about possible hazards and risks in the workplace. It is important to consult with employees as they are likely to have valuable insights on how to protect their own health and safety.
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