Common law

Common law is law developed through legal cases rather than by Acts of Parliament. Breaches of statutory duties, that is to say, duties contained in Acts of Parliament or regulations that are enforceable by regulators, may result in civil or criminal liability (see the amendment of the HSWA as a result of the Enterprise and Regulatory Reform Act 2013 above). It is a criminal offence to break health and safety law. However, workers may also be able to bring a civil action against an employer for compensation where physical or psychiatric injury has resulted from the employer’s negligence.

The most important common law duty with regard to health and safety is the duty of care. Employers have a duty to take reasonable care to protect their employees and their immediate family from the risk of foreseeable injury, disease or death at work.

If employers know of a health and safety risk (or should have known, based on the current state of knowledge at the time of the relevant incident) they will be liable if an employee is injured, killed or suffers illness as a result of the risk and they failed to take reasonable care. This duty of care is important where there is no specific statutory regulation, such as when dealing with repetitive strain injury (see Chapter 7), or stress, bullying and violence (see Chapter 11).

A landmark ruling in 2012, Chandler v Cape PLC [2012] EWCA Civ 525, decided that, in some circumstances, a parent company will owe a duty of care for the health and safety of workers employed by its subsidiary. According to the Court of Appeal, this duty can arise where:

• the businesses of both parent and subsidiary are in a relevant respect the same;

• the parent has (or should have) superior knowledge on some relevant aspect of health and safety in the particular industry;

• the parent knew (or should have known) that subsidiary’s system of work was unsafe; and

• the parent knew (or should have foreseen) that the subsidiary or its employees would rely on the parent using its superior knowledge for the employees’ protection. It is not necessary to show that the parent routinely intervened in the subsidiary’s health and safety policies. It may be enough to show that the parent has a practice of intervening in the subsidiary’s trading operations, for example, production and funding issues.

Although based on its own particular facts (especially the extent of involvement by the parent in the affairs of the subsidiary) this judgment may prove useful to an ex-employee of a subsidiary who wants to bring a claim in circumstances where the subsidiary is insolvent or no longer exists. This is a common problem for victims of long latency diseases, i.e. where the symptoms typically do not emerge until many years after the exposure. This particular case concerned a victim of asbestosis, and the facts are set out in Chapter 6: Asbestos.