This article examines the mutual duties of employers and employees to ensure health and safety when implementing change in work practices.

Change in work systems may be planned and implemented gradually or they may be required urgently due to unforeseen or adverse events. Either way, change to work systems must be implemented in accordance with all relevant health and safety legislation that applies to the workplace.

What does this mean for employers and employees?

The main legislation to refer to is the Safety Health and Welfare at Work Act 2005 and Regulations enacted under it. Specific legislation will apply to certain business sectors such as the Chemical Acts 2008-2010 and Regulations made under both, enacted to implement EU regulations within the industry that address safety in working with hazardous chemicals.

Employers’ duties under the Act may be summarised as follows:

• Managing and conducting all work activities so as to ensure, as far as reasonably practicable, the safety, health and welfare of people at work;
• Designing, providing and maintaining a safe place of work that has safe access and egress,and uses plant and equipment that is safe and without risk to health;
• Providing information, instruction, training and supervision regarding safety and health to employees;
• Providing and maintaining welfare facilities for employees at the workplace;
• Preventing risks to other people at the place of work including, for example, visitors,customers, suppliers and sales representatives;
• Have plans in place for emergencies.

The duties of employees can be summarised as follows:

• Comply with relevant laws and protect their own safety and health, as well as the safety and health of anyone who may be affected by their acts or omissions at work;
• Ensure that they are not under the influence of any intoxicant to the extent that they couldbe a danger to themselves or others while at work;
• Cooperate with their employer with regard to safety, health and welfare at work;
• Use in the correct manner any item provided for protection;
• Participate in safety and health training offered by their employer;
• Report any dangerous situations, practices or defects that might endanger a person’s safety, health or welfare;
• Not to engage in any improper conduct that could endanger their safety or health or that of anyone else.

If an employer wishes to introduce new systems, equipment or processes, the changes must be compatible with its obligations under the Act and all relevant Regulations. In considering this, it is useful to examine the recent decision of the Court of Appeal in relation to what an employer is reasonably required to do in order to discharge their health and safety obligations.

Martin V Dunnes Stores(Dundalk) Limited [2016] IECA 85

This case involves a claim by Ms Martin, the Plaintiff, who worked for Dunnes Stores in Dundalk for approximately 26 years. While working on the checkout till, she decided to assist a customer by getting another 10 kg bag of potatoes to replace a bag that had been torn. Her evidence was that she went to a pallet in the fruit and vegetable department and attempted to lift a bag from it. She described leaning into the pallet and “yanking” the bag out from between other bags. In the course of doing this, she sustained an injury to the biceps muscle in her left arm. The basis of her claim against her employer was that:

“She had not been provided with a safe system of work on the day in question in that, in practical terms, there was nobody at the checkout that she could call upon to carry out the customer’s request. She had been indirectly pressurised into carrying out the errand for the customer and the defendant had thus been negligent in failing to provide her with proper assistance and a safe system of work. Second, the plaintiff maintained that she had not received adequate training to allow her safely carry out the operation in question, namely, the lifting of a 10kg bag of potatoes from a pallet not much above floor level and where the bag concerned was wedged between other bags of potatoes."

However, evidence was given on behalf of the employer confirming that the employee had been trained in safe manual handling techniques and that there was a system of work in place to cover situations like the one that the Plaintiff found herself in. The Plaintiff had been trained that if there was no other employee immediately available to come to her assistance, that the store tannoy system was to be used to call for assistance. In these circumstances, the Plaintiff, in following that system, should not have lifted the bag unaided and should have called for help.

The High Court accepted that the Plaintiff was a hard-working and loyal employee; found her evidence to be honest and credible. However the Court of Appeal, in noting this, found that: ‘An employer is not to be taken as an insurer of the welfare of their employees'.

In Bradley v. C.I.E. [1976] I.R. 217 at 223, Henchy J. stated as follows:-

“The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.”

“The duty owed by an employer of course varies depending upon the knowledge and experience of the employee. Further, the more hazardous the work in which the employee is involved the more stringent the duty of the employer to protect the worker. However, their duty is met once they take reasonable and practicable steps to avoid accidental injury. As has often been stated, it is not possible to eradicate all risks and accidents."

The Appeal was allowed and the Plaintiff was ultimately ordered to repay the sum of €20,000.00 paid by her employer following the High Court decision. The system of work under scrutiny was in place for some time. Nonetheless, the case provides guidance to employers who wish to change work systems on what they need to do to comply with health and safety obligations.

First, all employees need to be fully trained in how the new system will work. The risk assessment and planning process will identify hazards and risks; that employees need to be aware of and trained to manage. This may include training on the operation of new equipment; refresher manual handling training; new procedures for dealing with emergencies if applicable.

Consultation and feedback from employees should be sought on how the system is working ideally from nominated employee health and safety representatives. If reasonably required, the employer should consider adjustments to the new system based on employee feedback. However as the above case illustrates, an employer is not expected to be an insurer of employee welfare but is expected to act reasonably and to be prudent.