Every employment contract has an unwritten duty of care implied for the employer. This common law duty has been a source of confusion for many professionals.
What does this duty mean for us? Is the employee exempt from all liability if something were to go wrong? How can we protect ourselves?
Since it is not expressly stated in the contract, can we ignore it?
The duty of care is an easier concept to understand than most persons realise.
We will explore the elements of the duty of care and what it means for your employment contracts during the course of this article.
So then, what is a duty of care? According to Wikipedia, the duty of care arises when one individual or group undertakes an activity which could reasonably harm another, whether physically, mentally or economically.
Further, under British Law (and therefore by extension the Caribbean) the courts have recognised a duty of care in the following relationships: one road user to another, manufacturer to consumer, doctor to patient, employer to employee, lawyer to client, and teacher to student.
As can be seen in the examples given, the burden of the duty of care rests on the person perceived to have more power in the relationship, and the other party is perceived to have the “most to lose” or is the most likely to suffer should something happen.
How does this translate to what employers must actually do? In essence, current labour legislation has solidified the duty of care, but the basic premise is that as an employer, you must:
Act fairly with employees – whether that means paying a fair day’s pay for a fair day’s work, fairness in discipline, rewards etcetera.
Act in the best interest of the employee – this includes ensuring that you make sound business decisions which will secure the future of the business.
Protect them from harm – including both physical and emotional harm, and encompasses bullying, sexual harassment and discrimination, in addition to health and safety risk assessments.
Ensure there is room for self and professional development through training and feedback
Creation of proper grievance handling procedures and communication channels.
A review of that list highlights that fulfillment of the duty of care has been part and parcel of all progressive organisations.
Also, recent pieces of local legislation such as the Employment Rights Act, and the Safety And Health At Work Act have acted to expressly outline the expectations.
It is important to note that on the other end, employee to employer, there are also duties implied on the employee’s side, and these include: to be honest, to disclose wrong doings within the organisation (whistle blower); to follow lawful instructions by their employer; to be confidential; to work with reasonable care and skill; to avoid conflicts of interest (this includes competing in a business against the employer while still working for them), not to take bribes; be prepared to change when the job changes; and follow health and safety rules (inclusive of wearing safety equipment and performing safety checks).
The duties of the employer and employee complement each other and each situation will be reviewed to see if a breach of the duties occurred and if the employer is wholly responsible, or if the employee contributed in some way.
Simply having the implied duty does not mean that all responsibility rests solely on the shoulders of the employer, and many other factors will influence a decision on liability.