Employers' liability -from physical to psychiatric illnesses

AutoreCarby-Hall J.
Employers’ liability –from physical to psychiatric
C-H J.
It is pure joy and a great honour to have been invited to write a chapter in a
liber amicorum to celebrate an excellent friend’s and colleague’s scholarly life,
namely that of Bruno Veneziani, with whom this author has worked over many
years. It is hoped that Bruno will appreciate the contents of this chapter which
treat an important development which has taken place in the United Kingdom
in recent years in the eld of the employer’s common law duty of care. Within
the strict parameters placed by the editors of this volume it is proposed to
analyse briey the well established concept of the employer’s common law duty
of care towards his employees which, until recently, applied generally only to
physical injuries and illnesses. The development of this concept in recent years
into the psychiatric eld is a welcome step forward and shows how labour law
has progressed and is progressing in the 21st century. This work proposes to
continue this author’s conversation with Bruno which originated from one of our
SOCRATES volume mentioned below.
The employers’ common law duty of care in respect of physical illnesses.
The law relating to employers’ liability spans over a period of some two
hundred years1. In the modern common law the employer owes the employee a
non-delegable duty of care.2 This means that the employer has to take reasonable
care for the health, safety and welfare of the employee. Such duty to take
reasonable care is automatically incorporated into the contract of employment
whether or not it is specically stated therein. Furthermore, the duty of care is
owed individually to each employee. In Paris v Stepney Borough Council,3 the
House of Lords4 held the employer liable for not providing goggles to a one eyed
employee (even though goggles were not provided to two eyed employees) who
was injured in the good eye thus making him totally blind. The employer’s duty
of care being an individual one, greater safety precautions needed to be taken
towards vulnerable employees.
It is important to note that the common law duty of care is owed by an
employer towards an employee and not to any other type of worker. The courts
have battled over many years and formulated numerous tests in order to establish
the distinction between an employee working under a contract of service5 and
an independent contractor working under a contract for services. Limitations of
space do not allow for a discussion on this important distinction and the reader
is thus referred elsewhere.6

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