Love Your Neighbour! Recent Cases And Duties To Third Parties

All employers are familiar with the duties imposed by the Safety Health and Welfare at Work Act 2005 (the "2005 Act") to ensure, so far as is reasonably practicable, the safety, health and welfare of their employees. It is important, however, to have a clear understanding of the potential reach of the duty imposed upon employers in respect of persons other than their employees.

Section 12 of the 2005 Act requires every employer to

... manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of work being carried out, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety health or welfare

Recent cases highlight the importance of understanding and discharging the duties which may be owed to persons other than a company's own employees. Between 2008 and 2013, 21 prosecutions have been brought by the HSA for contravention of section 121.

The duty imposed by this section applies to employees of third parties who may come onto the employer's place of work, such as contractors and sub-contractors who attend at your premises to carry out works, such as repair or maintenance, or to install equipment or services. However, it is not always appreciated that the scope of this duty extends far beyond this, and will impose a duty on employers towards visitors to the place of work, members of the public, both at or near the place of work and even to trespassers. That trespassers could fall within the scope of protection afforded by this section was made clear in the prosecution of O'Flynn Construction in 2006, which followed the death of a young boy who had unlawfully gained access to the site, where he had found unsecured hazardous material which ignited, resulting in fatal injuries. The Court clearly stated that O'Flynn Construction should have been aware that young people might gain access to the site, and therefore have ensured that all hazards were properly secured. Actual knowledge of the trespassers was not necessary for the duty to arise. It is clear, therefore, that an employer will be required to ensure that they have considered the impact of their activities on all persons, including undertaking a risk assessment in relation to hazards that are presented by the way the undertaking is managed and measures included within their safety statement for managing those risks.

The Meath County Council bus tragedy, which came before...