Duty of Care - An Employers Guide

No matter the size of your company - all employers hold a duty of care towards their people.

A duty of care can mean a wide range of things, from managing grievances to providing relevant training. But it's hard to list all these duties, as there's a lot of organisations need to remain compliant.

Failing to comply with duty of care could lead to serious consequences for organisations. It could mean losing talented individuals, reputational damage, fines, and even business closure in extreme cases.

In this guide, we will look at why it is absolute necessary to comply with your legal duty of care, and how your organisation can remain compliant.

What is a duty of care?

Duty of care is the legal and ethical responsibility of protecting the safety and welfare of people.

For organisations, it's about taking reasonable precautions to ensure the safety of their workforce. This obligation also extends to any other persons within an organisation's property, whether it be stakeholder, clients, or the general public.

Why is a duty of care important?

Duty of care is important as it safeguards your people in the workplace. It’s both a legal and ethical responsibility designed to protect others from physical and/or psychological harm.

It also presents opportunities for organisations to set healthy and safe models of working for all. This also applies to remote and/or hybrid working individuals too.

Examples of legal duty of care in the workplace

There are several examples of what counts as a duty of care within the workplace. That's because organisations have all sorts of legal obligations - which vary depending on the sector that the organisation operates within.

However, typical areas which apply to the majority include:

Safeguarding

Health and safety laws state that organisations have a legal responsibility to safeguard their people. This might be by conducting thorough risk assessments, having written safety policies and consulting the workforce about risks and prevention measures.

It's important for leadership teams to deal with any safeguarding issues in the workplace that have been noted and raised. For example, having safer recruitment processes when working with vulnerable adults.

Equality, diversity and inclusion

Often, you might hear the terms equality, diversity, and inclusion muddled up. But they stand as three separate entities.

Organisations are required to provide equal opportunities to people from all walks of life. This is regardless of any protected characteristics, like race, religious belief, or sexual orientation.

Inclusion is all about creating a working environment that involves all people regardless of their differences. That's why equality, diversity, and inclusion come part and parcel of an organisation's duty of care.

Mental health

Just like physical health, mental health must be given the necessary level of care and accommodations, especially within the workplace.

Part of your duty of care is to ensure any employee with a psychological condition are given fair opportunities at work. People’s mental wellbeing is protected by multiple pieces of UK legislation, including the Equality Act 2010 and the Health and Safety at Work Act 1974. This might mean making accommodations for those dealing with excessive levels of stress, or preventing discrimination against those with common long-term mental health conditions such as anxiety or depression. They may also be legally entitled to reasonable adjustments.

Wellbeing

Wellbeing relates to the state of being comfortable, healthy, or happy and is part of an organisation's duty of care to their people.

It's important to understand how to protect and promote wellbeing in your workplace. This includes both people’s mental and physical wellbeing.

From offering counselling helplines, dedicated menopause support or additional maternity leave, there are a variety of methods and services to safeguard your people. When your individuals feel respected and valued at work, it encourages organisational commitment and engagement, preventing talent loss and workforce turnover, increasing the chance of organisational success.

Do employers have a legal obligation for duty of care?

Yes, all organisations have an obligation, regardless of whether they run a private, public or voluntary organisation.

When it comes to duty of care, there are certain legal obligations set out in UK law. For example:

The Health and Safety at Work etc. Act 1974 (HSWA)

HWSA is considered as the main law when it comes to workplace health and safety in the UK. It places a duty onto both an organisation and its people. It obligates them to protect the welfare of all persons linked to working duties or practices.

The Management of Health and Safety at Work Regulations 1999 (MHSWR)

MHSWR is the law that covers an organisations duty to identify, record, and report accidents and serious injuries caused within the workplace. The law also specifically covers how to prevent accidents from reoccurring in the future.

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR)

RIDDOR is the law that outlines a duty towards reporting specific workplace-related accidents. These usually include reporting occupational diseases, dangerous occurrences, and near-misses to the Health and Safety Executive (HSE).

The Provisions and Use of Work Equipment Regulations 1998 (PUWER)

PUWER is a law that covers an organisation’s responsibility to ensure work equipment is maintained to a high, safe and satisfactory standard. This includes making sure equipment is suitable for tasks, well-maintained, and inspected by a trained and knowledgeable individual.

The Equality Act 2010

The Equality Act outlines a duty of care that ensures protection from unlawful discrimination. This includes age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

This piece of also protects those with mental health conditions from discrimination, protected under the disability characteristic. Common mental health and neurodiverse conditions can often be overlooked, but if they are long-lasting and impact a person's ability to carry out tasks in the workplace effectively, the Equality Act 2010 protects them, and reasonable adjustments must be made to comply.

To find out more about workplace equality and what characteristics are protected by law, read our article: Equality in the Workplace: Employer Responsibilities.

What happens if you breach duty of care?

Organisations can be held liable for negligence if a person faces serious harm or injury – whether that’s physical and/or mental. Even if the breach was caused by another person – the organisation holds overall responsibility.

The High Court generally passes rule on whether a workplace practice or environment is sound. To prove the negligence, they'll focus on assessing whether the organisation:

• Fulfilled their duty by acting in a reasonable way.

• Conducted an adequate level of due diligence (also known as ordinary care).

• Acted in good faith.

• Didn't waste organisation assets on overpaying for goods, property, or labour.

Can an individual in the workforce breach their reasonable care? (H3)

Yes, an individual can breach their duty of care in the workplace.

They also hold a legal requirement to comply with safety standards and laws. Even though organisations and their leadership teams have overall responsibility, an individual can still face serious legal action for neglecting their duty of care.

That's why it's important for organisations to outline the limits to their duty of care. They must ensure their people understand they can be held liable for a breach they cause.

Can an employee raise a personal injury case?

Yes, if an individual were injured due to neglected duty of care, they're allowed to raise a personal injury case.

The case law must establish that the organisation was legally obliged to act in a way that doesn't foreseeably harm others.

When it comes to dealing with a personal injury case, UK tort law outlines four outcomes:

Refrain from intentional injury

If a person injures another person intentionally, the behaviour is seen as a liability. The injured person may express their legal rights to recover damages due to the other person's actions.

Negligence

If a person's action injures someone unintentionally, but it creates foreseeable harm to others, it may count as negligence. All organisations are required to refrain from actions that could lead to gross or serious negligence.

Recklessness

If a person acts in a reckless manner, it means they don't have any regard for the safety of others. The court may decide that the defendant owed them a duty of care and must pay damages for their actions.

Strict liability

If a manufacturer creates products with defects that cause harm, they could face strict liability. They could still have liability even if there's no proof of them ignoring industry standards.

Strict liability is often passed after a series of investigations and hearings. But if the sentence is passed, the defendant's conduct could lead to compensation fines and further legal damages.

How to comply with duty of care within the workplace

Organisations must take reasonable precautions when it comes to their duty of care. Implementing an effective policy ensures that organisations are able to remain focused on their mission aims.

Create a policy on duty of care

The first step organisations must take is to create a policy that outlines a duty of care.

The policy shows guiding principles and responsibilities held by the organisation, as well as what is legally expected from their people. This can be added to workforce handbooks and contracts to ensure full understanding and compliance.

The entire workforce should have access to knowledge that reasonable care exists within an organisation. Be aware, if this is neglected individuals won't feel comfortable within an organisation that doesn't value their welfare and safety. This will likely result in increased workforce turnover and reputational damage.

Provide training on safe work practices

Workplace health and safety counts is one of an organisation’s most important legal obligation.

Without proper training or knowledge, your people have an increased risk of injuring themselves, or others around them. This could result in an organisation facing personal injuries and negligence claims at an employment tribunal. And these often escalate into expensive matters for organisations.

Highlight ways to report work-related concerns

Sometimes, an individual may wish to raise concerns regarding workplace standards.

This is their legal right. It's in organisation’s best interests to highlight ways for them to raise concerns internally to prevent surprise inspections from the Health and Safety Executive (HSE).

Organisations should:

• Hold a private, informal meeting with the concerned person.

• Allow them to share what their concerns are (without fear of judgement or consequence).

• Inform them on what the process is for addressing these concerns.

• Provide direct support if needed (or referrals to external support workforce groups).

• Announce the outcome for managing their concerns (providing them with appropriate feedback).

Apply amendments from work risk assessments

A great way to implement your duty of care is by fixing any ongoing concerns within your workplace. Organisations can do this by applying amendments found in their work risk assessment.

Work assessments come in all shapes and sizes, from applying safety standards to safeguarding children and adult protection.

Once you've identified relevant work concerns, you'll be able to create a safe work environment that protects both your workforce and the general public, all whilst complying with your duty of care.

Promote the importance of workforce welfare

Under employment law, organisations must ensure their working practices don’t worsen a person's health conditions.

There are a great number of ways to do this. For example, to tackle work-related stress, provide health assessments to all people within the workforce. These assessments can help identify and minimise workplace risks that may trigger or exasperate a person's mental conditions. Our article on Duty of Care Examples can help to develop and implement a duty of care policy.

Get expert advice

It’s important for all organisations to comply with their lawful duty of care. It’s not only a legal obligation, but also an ethical one.

Focusing on this allows you to build a safe and secure workplace for all. But if you neglect your legal duties, you could be held liable for negligence claims and face hefty compensation penalties.

How an EAP can help ensure workplace duty of care

Using an Employee Assistance Programme (EAP) can support your duty of care by providing mental and physical support for individuals within your organisation.

With HA | Wisdom Wellbeing’s EAP service, your people can access our expert counselling helpline 24/7, 365-days a year.

Our qualified counsellors can signpost and/or provide structured counselling when deemed clinically appropriate, to help individuals overcome issues like stress, anxiety and depression. As well as this, they can utilise our SpeakUp service to raise any workplace concerns and wrongdoings confidentially.

Our EAP also supports leadership, HR and management teams with our dedicated helpline. Whether it is a question on workforce wellbeing support, employment law or HR-related queries, our team are trained and prepared to provide relevant guidance and information. Our teams offer support on employee wellbeing whilst simultaneously meeting your organisation’s needs.

Conclusion

No matter the sector, size of the organisation or how safe the workplace might be perceived to be, all organisations need to uphold their duty of care. This can sometimes be overwhelming and confusing due to the extensive nature of the laws surrounding it, but it is imperative to the success of an organisation. It not only keeps it legally compliant, but it ensures high levels of wellbeing amongst its people, thus boosting productivity, engagement and overall success.