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Employers LiabilityLiability
Liability means legal responsibly for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him open to a law suit for any resulting damages or loss which may occur to the other party.

Accidents In The Workplace

The employer has a duty to protect the employee and tell him about health and safety issues that affect him. The employer also has a legal obligation to report certain accidents and incidents.

If you are an employer in the Republic of Ireland and an employee has notified you of a Claim, you should read our section on PIAB - Advice for the Employer.

We consider the obligations of both the employer and the employee under the follow headings:

  • Who Is Responsible For Health & Safety At Work?

  • Risk Assessments

  • The Safety Statement

  • Employees' Responsibilities At Work

  • Recording Accidents

  • The Accident Report

  • The Employee Making A Personal Injury Claim

  • What An Employee Should Do Next If He Has An Accident At Work

  • Reporting An Accident At Work To Third Party Authority

 

Who Is Responsible For Health & Safety At Work?

An employer owes duties to employees under Common Law and statute.
The Common Law duties have been developed by the courts as they decide cases on accidents at work.

The employer’s Common Law duties are:

  • to provide a safe place of work

  • to provide proper tools and equipment

  • to provide a safe system of working

  • to provide competent staff

In addition an employer owes duties under statute to safeguard employees in the workplace.

In the Republic of Ireland, under the Safety, Health & Welfare at Work Act 2005, the employer’s duty is to ensure the safety of employees and in particular:

  • to provide by management and action, safety at work;

  • to provide by management and action that improper conduct does not occur;

  • to provide a safe place of work;

  • to provide safe plant or equipment;

  • to provide safe a safe system of work;

  • to provide safety information, instruction, training and supervision to employees;

  • to make a risk assessment and to implement measures to protect workers from those risks;

  • to provide protective clothing or equipment where hazards can not be completely eliminated;

  • to make emergency plans; and revise them as required;

  • to guard against hazards of particular articles or substances;

  • to provide welfare facilities and maintain them;

  • to provide a competent person to ensure safety and health at work of his employees.

In Northern Ireland, under the Safety at Work (NI) Order 1978 and the “six-pack” Regulations, the employer’s duties can be summarized as set out below. All employers, whatever the size of the business, must:

  • make the workplace safe

  • prevent risks to health

  • ensure that plant and machinery is safe to use, and that safe working practices are set up and followed

  • make sure that all materials are handled, stored and used safely

  • provide adequate first aid facilities

  • tell the employee about any potential hazards from the work you do, chemicals and other substances used by the firm, and give you information, instructions, training and supervision as needed

  • set up emergency plans

  • make sure that ventilation, temperature, lighting, and toilet, washing and rest facilities all meet health, safety and welfare requirements

  • check that the right work equipment is provided and is properly used and regularly maintained

  • prevent or control exposure to substances that may damage the employee`s  health

  • take precautions against the risks caused by flammable or explosive hazards, electrical equipment, noise and radiation

  • avoid potentially dangerous work involving manual handling (and if it can't be avoided, take precautions to reduce the risk of injury)

  • provide health supervision as needed

  • provide protective clothing or equipment free of charge (if risks can't be removed or adequately controlled by any other means)

  • ensure that the right warning signs are provided and looked after

 

Risk Assessments

A Risk Assessment is a careful examination in the workplace of what could cause harm to people so that the employer can weigh up whether he has taken enough precautions or should do more to prevent harm. The employer is legally required to assess the risks in the workplace so that he can put in place a plan to control the risks.

In the Republic of Ireland, under the Safety, Health & Welfare at Work Act 2005, risk assessment involves four aspects.

  • the risk must be identified in the first place.

  • it must be than assessed or quantified as a statistical possibility. In other words the likelihood of the perceived possibility must be measured

  • the measure of damage potentially arising must be identified.

  • the practicability of avoiding the risk must be assessed.

In respect of Northern Ireland the UK Health & Safety Executive website details five steps in a leaflet titled  “How to assess the risks in your workplace” as follows:

  • Identify the hazards

  • Decide who might be harmed and how

  • Evaluate the risks and decide on precaution

  • Record your findings and implement them

  • Review your assessment and update if necessary

Don’t overcomplicate the process. In many organisations, the risks are well known and the necessary control measures are easy to apply. The employer probably already know whether, for example, he has employees who move heavy loads and so could harm their backs, or where people are most likely to slip or trip. If so, check that you have taken reasonable precautions to avoid injury.
 
If an employer runs a small organisation and he is confident that he understands what’s involved, he can do the assessment himself. The employer is not required to be a health and safety expert.

If the employer works in a larger organisation, he could ask a health and safety adviser to help him. If he is not confident, he can get help from someone who is competent. In all cases, he should make sure that he involves his staff or their representatives in the process. They will have useful information about how the work is done that will make the assessment of the risk more thorough and effective. But the employer should remember, that he ultimetly is responsible for seeing that the assessment is carried out properly.

When thinking about the risk assessment an employer should remember:

  • a hazard is anything that may cause harm, such as chemicals, electricity, working from ladders, an open drawer etc;

  • the risk is the chance, high or low, that somebody could be harmed by these and other hazards, together with an indication of how serious the harm could be.

 

The Safety Statement

The legislation requires that requires that an organisation produce a written programme to safeguard:

  • the safety and health of  employees while they work

  • the safety and health of  other people who might be at the workplace, including customers, visitors and members of the public

The Safety Statement represents a commitment to the safety and health of the employees. It should state how the employer will ensure their safety and health and state the resources necessary to maintain and review safety and health laws and standards. The Safety Statement should influence all work activities, including

  • the selection of competent people, equipment and materials

  • the way work is done

  • how goods and services are designed and provide

It is essential to write down the Safety Statement and put in place the arrangements needed to implement and monitor it. The Safety Statement must be made available to staff, and anyone else, showing that hazards have been identified and the risks assessed and eliminated or controlled.

 

Employees' Responsibilities At Work

Employees must also take reasonable care over their own health and safety.
The most important responsibilities as an employee are:

  • to take reasonable care of your own health and safety

  • if possible avoid wearing jewellery or loose clothing if operating machinery

  • if the employee has long hair or wear a headscarf, make sure it's tucked out of the way (it could get caught in machinery)

  • to take reasonable care not to put other people - fellow employees and members of the public - at risk by what he does or doesn’t do in the course of his work

  • to co-operate with his employer, making sure he gets proper training and he understands and follows the company's health and safety policies

  • not to interfere with or misuse anything that's been provided for his health, safety or welfare

  • to report any injuries, strains or illnesses you suffer as a result of doing your job (the employer may need to change the way he works)

  • to tell his employer if something happens that might affect his or her ability to work (e.g. becoming pregnant or suffering an injury). Because your employer has a legal responsibility for the health and safety of the employee, they may need to suspend the employee while they find a solution to the problem, but the employee will normally be paid if this happens

  • if the employee drives or operates machinery, to tell his employer if he takes medication that makes him drowsy - they should temporarily move the employee to another job if they have one for him to do.

 

Recording Accidents

Any injury at work - including minor injuries - should be recorded in the employer's 'Accident Book'. All employers (except for very small companies) must keep an accident book. It's mainly for the benefit of employees, as it provides a useful record of what happened in case the employee needs time off work or needs to claim compensationCompensation
An amount awarded by a court or tribunal if your employer has treated you in a way that breaks employment law or breaches your contract, sometimes called damages
later on.  But recording accidents also helps the employer to see what is going wrong and take action to stop accidents in future. It also helps the employer to ensure that an accurate record of the accident is made at the earliest possible time  - and preferably at the time of the accident.

 

The Accident Report

This is different from simply recording the accident in the Accident Book. At the earliest possible date after the accident a report should be written on every accident. The report should be written by someone who was unconnected with the accident and who understands the procedures to be followed for a proper analysis. Every witness should be individually interviewed to ascertain the conditions existing at and prior to the accident. The inspection of the scene of the accident should take place as soon as possible. Photographs should also be taken.

The data collected should answer the following questions; Who?, What?, Where? and When? Only then can the fundamental question be addressed - How? Before the answer is given to this the factors leading to the accident should be marshalled and a causal tree drawn up. This is a diagram illustrating the factors anterior to the accident and their respective causes and the relationship between them all. This will assist the employer in coming to an early decision on whether he should accept responsibility for the accident and thus save legal costs in the event of an Accident Claim.


The Employee Making A Personal Injury Claim

If an employee has been injured in an accident at work and he believes that his  employer is at fault, he may want to make a claim for compensationCompensation
An amount awarded by a court or tribunal if your employer has treated you in a way that breaks employment law or breaches your contract, sometimes called damages
. Any claim must be made within the limitation period Limitation period
This is the period of time within which you must make a claim for compensation. It is usually three years for personal injury cases in Northern Ireland and two years for personal injury cases in the Republic of Ireland and six years for other claims. After this time, you are very unlikely to be able to make a claim, although there are exceptions to this. Your solicitor will advise you about the limitation period that applies in your particular case. This is a good reason for seeing a solicitor as soon as you think you may have a claim for compensation.
and the employee will normally need a Solicitor  to represent him. If the Claim cannot be settled by agreement then it must proceed to Court by way of a Civil Claim for compensationCompensation
An amount awarded by a court or tribunal if your employer has treated you in a way that breaks employment law or breaches your contract, sometimes called damages
. In the Republic of Ireland, however, before a Claim can proceed to Court an Application must first be submitted to InjuriesBoad.ie (formerly know as the Personal Injuries Assessment Board (PIAB)).

By law, (in Northern Ireland, but not in the Republic of Ireland) the employer must be insured to cover a successful claim.

 

What An Employee Should Do Next If He Has An Accident At Work

The employee should :

  • make sure he records any injury in the 'Accident Book'

  • if need be, make sure the employer has reported it to the Health & Safety Executive (HSENI) in Northern Ireland / the Health & Safety Authority (HSA) in the Republic of Ireland

  • check his contract or written statement of employment for information about sick or accident pay

  • if there are health and safety problems at work, point them out to his employer or the employee safety representative, and ask for them to be dealt with 

 

Reporting An Accident At Work To Third Party Authority

The employer must report serious work-related accidents, diseases and dangerous incidents to the Health & Safety Executive (HSENI) in Northern Ireland / the Health & Safety Authority (HSA) in the Republic of Ireland.

They must report:

  • death

  • major injuries (for example, a broken arm or ribs)

  • dangerous incidents (for example, the collapse of scaffolding, people overcome by gas)

  • any other injury that stops an employee from doing their normal work for more than three days

  • disease

 

The Diamond, Clones, Co.Monaghan, Ireland. Tel from ROI: 047-51011 Tel from NI: 00353 47 51011 Email: law@morganmcmanus.ie