Themselves and others affected by their acts or omissions at work
At first sight, these duties may collectively appear to require any person who is carrying out work, or activities related to the carrying out of work, to take care for the health or safety of any person who may be put to a risk from those activities. In practice, this is not the case.
Several issues were raised with us that point to shortcomings in the effectiveness of these duties of care. We accept that each is valid. These issues are:
Incomplete coverage
placing the primary duties on the employer to employees does not impose detailed obligations on a person for whom work is being done towards those engaged by or through that person who are not employees within the ‘traditional’ or common law definition;
while the broader and less specific duty owed to others in relation to the conduct of the undertaking is also owed by a self-employed person, there are circumstances in which arguments have been raised as to whether the person is ‘self-employed’ (e.g. whether they are engaged in a business for profit or reward);
provisions deeming contractors and their employees to be employees of the employer who engaged the contractor only apply if the principal is an employer;
Unintended consequences
attempts to deem contractors and their employees to be employees of the employer who engaged the contractor have produced some confusion and uncertainty as to the scope of their operation. Restricting the deeming provision to matters over which that employer has control has been of some concern, as it has resulted in:
gaps in the provision of health and safety protection, where duty holders believe that others are providing for it;
the inefficient use of limited health and safety resources through duplication of efforts by multiple duty-holders; and
in some cases, a duty holder may attempt to avoid the duty by relinquishing or passing on control, rather than focusing on the protection of safety and health;
Artificiality
some specific provisions have also been required to extend the operation of duties beyond employees as defined at common law, such as taking serving members of police forces to be employees,86 or providing that the duties of care are specifically owed to volunteers. This can make the legislation large and unwieldy and the legislative processes make timely amendments difficult;
deeming provisions may be seen as being artificial and ‘singling out’ specific classes of persons arbitrarily and with a risk of gaps in coverage;
Confusion
concerns that the general nature of the ‘conduct of the undertaking’ duty of care makes it unclear what is required of the duty holder in various circumstances, such as:
contractual chains in transport and clothing manufacture;
other circumstances where the person with effective control over significant aspects of the work is distant from those doing the work;
defining the primary duty holder by reference to employment or other specific relationships results in a focus on the nature of the relationship, ‘pigeon-holing’ or compartmentalising of duties, and a lack of recognition that duties of care may be owed to persons engaged in doing the work, even if they do not fit into a ‘pigeon-hole’; and
uncertainty whether the specific duties owed by an employer to employees in relation to systems of work, plant etc are also owed to non-employees who are in a relationship that is akin to employment.
We consider that this illustrates that although the current duties of care have been largely effective, problems have emerged. The current approaches may not satisfactorily accommodate ongoing changes in work and the way it is organised. We consider that a more comprehensive expression of the duties would reduce the risk of further gaps and uncertainty as more changes occur.
