Put simply, duty of care means the moral or legal obligation to care for other people’s health, safety, and wellbeing. In the context of a work environment, it refers to an employer’s legal duty to ensure employee health and safety.
A lack of duty of care can result in negligence, a term you’ll hear tossed around next to unappealing words like personal, injury, and payout—or bureaucratic and nightmare. Under civil law, if someone has been injured or made ill through your negligence as an employer, they may be able to make a compensation claim against you.
However, being familiar with the concept of duty of care can ensure that you implement and comply with it, with minimal headaches (and limited head injuries!).
This is a guide to everything you need to know about duty of care in the workplace, from exactly what it is, to who it applies to, to the consequences of a policy breach. Let’s dive in.
What is duty of care in the workplace?
Duty of care laws refer to the legal obligation which requires employers to protect those who fall under their employment, use their services, or are exposed to their activities. In short, it covers employees, contractors, and customers.
Often used in tort law, the legalese surrounding duty of care refers to the standard by which someone is held liable for a plaintiff’s injury in personal injury cases. If a person or organization is found to be in breach of duty of care, they might be held liable for negligence.
Essentially, it’s the employer’s duty to take into account potential risks and safety issues, by way of risk assessments and precautions, to ensure employee safety and organizational liability.
Why is duty of care important?
Duty of care is about more than a legal liability: it outlines a general rule for employers to make decisions that are financially, ethically, and legally sound. It also holds employers accountable to keep employees safe. In other words, it’s a moral obligation to ensure the safety of others.
A high standard of care requires employers to stay present, informed and engaged about their workplace, and equips them with the tools to prevent, or deal with, work-related concerns. From minimizing safety risks to confronting crises, it’s a level of responsibility appropriate to the role of an employer.
Where and how does duty of care apply?
Firstly, all employers have duty of care obligations, whether they run a private or nonprofit organization. An employer’s duty of care depends on the country where it operates. For example, in the US, the Department of Labor’s Occupational Safety and Health Administration sets out the main legal obligations of complying organizations on a federal level, but other duty of care laws (for example maternity leave) are set at state level.
Duty of care principles follow a similar vein in Canada, Australia, and many European countries. However, a duty of care is still not a legal obligation in many developing countries, explaining why they are often exploited for cheaper labor, and often in unsafe work environments where employees are at an increased risk of harm.
What does duty of care mean in practical terms?
Complying with the legal requirements of the duty of care common law is a thorough process. Here are some safety regulations that employers are required to adopt:
- Ensure that staff work a reasonable number of hours
- Conduct work-based risk assessments
- Provide adequate training and personal protective equipment (PPE) if necessary
- Keep up-to-date training records and display certifications
- Ensure that all employees are protected from discrimination, bullying and harassment
- Provide clear communication channels for reporting concerns
- Incorporate mandatory rest breaks into employee shifts
- Provide special measures for adults or children who are at high risk
What about remote workers?
Employers owe the same duty of care to all staff, whether they’re working from the office or from home. Creating a safe working environment is an employer’s legal responsibility, but duty of care goes beyond the physical office space.
Whether employees working from home or employees traveling internationally for work, a duty of care still stands. However, implementing this isn’t always straightforward.
When building a policy to address remote workforce risks for your organization, it’s important to understand the issues your company and employees may face. Even if your company doesn’t plan to implement a full remote workforce policy, there should be clear guidelines given to all managers and employees in order to maintain consistent treatment throughout your workforce.
It’s very important to ensure your employees understand what remote working does and doesn’t mean for duty of care. In order to navigate this situation, many companies encourage at-home risk assessments, in order to manage and identify potential risks. Employees must take on the responsibility
Why do companies need to have a duty of care policy?
Not only is providing a duty of care program to employees a moral and legal necessity, it’s also part of a good business practice. For employees, knowing their employer has their back can be a significant plus for staff retention, talent acquisition, team morale, and overall productivity and profitability.
What are some examples of duty of care obligations?
Safeguarding: keeping everyone safe
It’s essential for all businesses to comply with the law on safeguarding, which includes a duty of care towards children and adult protection. From safer recruitment processes for vulnerable adults, to mandatory chaperones for children, employers have a responsibility to be vigilant of potential signs of abuse and neglect.
Mental health: just as important as physical health
In the workplace, mental health carries as much weight as physical safety. This means not discriminating against employees because of a mental or physical disability, which may include severe depression, anxiety, or chronic stress.
It’s also up to employees to ensure that working conditions are not contributing to any ill health among their employees. This means creating a healthy work environment, monitoring individual reactions to stress, and supporting individuals who need it.
In practice, this might look like allotted ‘mental health days’ (a certain number of days people can take off without needing to explain why), discounted therapy sessions, or annual staff retreats.
Employee wellbeing: a holistic strategy
While this term might conjure up images of wellness retreats or company yoga weekends, it’s actually part of a workplace duty of care. Employee wellbeing in this context refers to factors such as sufficient sick leave, maternity/paternity leave, remote working options where possible, and generous annual leave.
What is a breach of duty of care?
A breach takes place when an employer fails to meet the reasonable standard of protection towards another person or organization. The employer may be liable for negligence in a personal injury case if their breach of duty caused another person’s injuries or mental ill health.
However, by demonstrating that adequate safety training, risk assessments, and relevant precautions had been put in place before the incident occurred, the employer can provide evidence that they had taken reasonable steps and precautions to ensure the wellbeing of every person involved.
Here are some examples of a breach in duty of care:
- Tripping on a poorly maintained floor
- Falling down a wet flight of stairs
- Electrocution from a faulty plug
- Injury from incorrectly handling equipment without training
Here are some omissions on the part of the employer:
- Not providing wheelchair access to any services or facilities your able-bodied employees can access
- Failing to regularly test fire alarms
- Not ensuring power outlets are grounded
- Failing to sufficiently mark fire exits
Who is responsible for the duty of care at a company?
Creating and implementing a policy on duty of care is often the implicit responsibility that comes with being a company director. It’s up to a leader to make informed decisions about what is best for both the organization and their employers, users and partners.
Together with the HR department, and potentially a legal team, company leaders create a duty of care strategy, which they then implement across the company via precautions, assessments and training programmes.
What can happen if I fail in my duty to protect my employees?
For a company or organization, the consequences of a breach of duty of care are mostly financial and reputational, which can be a source of severe stress and pressure.
Financial settlements may be reached under a personal agreement, but (particularly where companies are concerned) they’re far more likely to be decided in courts of law.
These proceedings are typically very expensive and time-consuming, not to mention the significant negative publicity, which can be highly detrimental to an organization’s reputation, leading to staff turnover, customer churn, struggle in acquisition, or even loss of investments and business partnerships.
Duty of care: the bottom line
When it comes to creating rock solid duty of care policy, you’ll need to make sure you leave no stones unturned. From covering employees traveling for work to protecting pregnant employees, a duty of care strategy must be incredibly detailed and carefully thought out.
It’s worth putting in the time and effort to ensure compliance, as the repercussions of a breach in duty of care can be catastrophic. Remember that duty of care covers all areas of your organisation: with the help of companies such as TravelPerk to cover business trips, you can rest easy knowing your corporate travelers are well looked after, with help of hand in case of eventualities.