E. Outsourcing safety and employers’ liability
An employer’s duty to take reasonable care for employees’ safety is generally described as non-delegable. This means that, although an employer may assign the performance of safety-related functions to contractors, managers, supervisors, or other third parties, the employer cannot simply delegate away the legal responsibility for employee safety.
In practical terms, if maintenance is outsourced, training is left to a supervisor, or inspections are carried out by an outside contractor, the employer may still be liable if reasonable care was not in fact taken. It is not enough for the employer to say that the task was delegated to someone believed to be competent.
This principle is especially important in modern workplaces, where work is often divided between contractors, subcontractors, labour suppliers, and site operators. Although the legal analysis may become complicated, the basic point remains that a direct employer cannot avoid responsibility for employee safety merely by pointing to another party.
Hong Kong courts, however, apply an important distinction when safety-related arrangements are “outsourced”:
(i) Delegation of work process
Where an employer delegates part of its own business operations to a contractor, the duty generally remains strictly non-delegable. For example, if an employer hires an outside firm to maintain industrial machinery used in his business, the employer may still be liable if the contractor performs the work negligently and an employee is injured.
In this situation, the employer cannot avoid liability simply by showing that it acted reasonably in selecting or appointing the contractor. If the contractor failed to exercise reasonable care in carrying out the delegated work process, the employer may be in breach of its duty.
(ii) Access to a service
A different approach may apply where the employer is not delegating part of its own work process, but is merely giving employees access to an independent third-party service. For example, if an employer arranges for employees to receive medical care through an outside clinic, the employer may be able to discharge its duty by showing that it reasonably relied on a provider known to be competent and experienced.
In such cases, the employer’s duty may be satisfied if it took reasonable care in choosing an appropriate service provider. The employer is not necessarily liable for every act of negligence by the independent provider.
Overall, the key question is whether the employer has delegated part of its own operational responsibility for workplace safety, or whether it has merely provided access to an external service. In the former case, the duty is likely to remain non-delegable; in the latter, reasonable reliance on a competent third party may be sufficient.
