F. Employers’ liability for injury caused by a third party
An employer’s duty to ensure the safety of their employees is personal and non-delegable. This means that while an employer may delegate the actual performance of safety tasks to a third party, such as an independent contractor, he cannot delegate the legal responsibility for those tasks.
Negligence of independent contractors
If an employer hires an independent contractor to perform a task and that contractor’s negligence leads to an employee’s injury, the employer is held personally liable. For example, if a contractor is hired to operate a crane and causes an injury due to an unsafe system of work, the employer has failed in their non-delegable duty to see that care was taken. The courts follow the principle that the employer must not only take care but must see that care is taken by anyone they entrust with safety duties.
Protection from intentional acts and crimes
The employer’s duty extends to protecting employees from the wrongful acts of third parties if the risk is known or reasonably foreseeable. This may include:
- Taking precautions against gang attacks on staff in high-risk environments.
- Protecting medical staff from patients known to be dangerous.
- Protecting employees from assaults by members of the public, particularly in jobs that involve high-pressure interactions or handling cash.
If an employer knows that a third party poses a threat and fails to take reasonable steps to reduce that risk, they may be found in breach of their duty.
Working at third-party premises (off-site work)
An employer’s duty of care follows the employee even when they are sent to work at a site controlled by a third party. While the employer does not control the premises, they must still take reasonable steps to ensure the off-site location is safe, which may include:
- Inspecting the site before sending workers, especially for long-term assignments.
- Ensuring the occupier is reliable and aware of safety obligations.
Providing specific instructions or equipment to handle known hazards at the third party’s premises.
