The injury is made to an employee, Geoff. It must be considered weather the employer is liable in breach in employment law. Mr Gervais has a duty to provide competent and safe colleagues. This means that “an employer must ensure good behaviour of all employees while at work. All unsafe practices should be dealt with and an employee who indulges in such practises should be disciplined and in extreme cases even dismissed” (Hodge, 2004) As well implied duty in employee’s contract of employment states “your employer must protect you from any actions in the workplace which cause you ill or put your safety at risk” (Jefferson, 1997) In the situation if the employer is unaware that the employee behaves unsatisfactory and injures another employee, it will be unlikely that the employer will be liable as in Smith v Crossley Bros . Claimant was apprentice or trainee employed by Defendant. He was seriously injured by two fellow apprentices who played a practical joke on him. Held: not liable as act of wilful misbehaviour which defendants could not have foreseen. (No duty of care). However, in this scenario Mr Gervais is aware of Peters behaviour (as it is stated in scenario that he has told Peters about his behaviour before), therefore the employer is liable under his personal duty, see Hudson v Ridge Manufacturing Co. Claimant injured by a foolish prank played on him by a fellow employee. Employer knew about this and had spoken about his conduct and reprimanded him. Held: employers were liable and had breached their duty of care.
Next to look at is Defamation Act 1952. Defamation is defined as “publication of a statement which reflects on person’s reputation and tends to lower him” (Rogers, 2002) see Parmiter v Coupland. It is held that reputation was damaged. Also see Berkoff v Burdhill, where the claimant was untruthfully described and the defendant was liable in negligence. It is also breach of implied term in the contract of employment “that any reference would be compiled with reasonable care.” (Duddington, 2007) In this case Spring v Guardian Assurance plc a reference provided by a former employer was a malicious false hold and negligent misstatement. On the other hand, in this scenario, it is innocent publication; because “the defendant (in this case Mr Gervais) was not the author of the defamatory material” see Vizetelly v Muddie’s Select Library. It was held that the defendant was not liable. This is the case in this situation, because Mr Gervais just read out the statements about the potential employee which are in for of libel. Libel means that “defamation is in written or any other permanent form.”(Hodge, 2004) Though, the employee could sue his previous employer in breach of contract of employment.
The past accident has caused the damage to the employee, Geoff. In these circumstances could be found issues relevant to employment law. Geoff was attacked by his fellow employee Peters. Of course it may have not been intentionally as in Scott v Shepherd. It was held that Shepherd was liable even though he did not mean to hurt Scott. See also Pursell v Horn which states that the force applied does not have to be personal contact. From this aspect it can be decided that the employee, Geoff, can sue Peters for the injury gained from his practical joke.
Basically, Peters has bullied Geoff at workplace. “The basic legal protection employee has against bullying, as with stress, is the implied duty in the contract of employment of his employer to protect the employee from any actions in the workplace which cause him ill health or put his safety at risk. (Your Rights at Work, 2004) This is breach of the employer not providing safe environment to the employee resulting in very serious injury. See Harrison v Michelin Tyres, it was held that employer is liable for breach of duty of care. Contrast for this is Aldred v Nacanco. Moreover, the employer has duty to the plaintiff to prevent the type of injury which occurred in the working area, like in Health and Safety at Work Act 1974. The plaintiff must prove that duty was owed to him see Mc Williams v Sir Villiam Arral. It was held that the employer was in breach of duty. There are cases when it is not possible to prove it, see Marshal v Gotham Co Ltd. It was held that the employer was not in breach of duty, because could not predict the accident.
On the other hand, Peters is liable as well because an employee has duties in contract of employment too. Section 7 of the Health and Safety at Work Act 1974 states that employees have a duty to “take reasonable care for the health and safety of themselves and others who may be adversely affected by their acts or omissions at work” (Daniels, 2008)
Geoff now needs to take less paid job but he has to feed wife and four children. This may source him worries about future and also mental suffering caused by acknowledgment that life expectancy may be reduced see Heil v Rankin. It was held that there is prove of pain and suffering. However, it is not always easy to prove, see Hicks v Chief Constable of South Yorkshire. It was decided that there will be no award for the claimant. On the other hand, loss of amenity refers to “changes in life style which claimant will suffer as a result of injury.”(Harlow, 2005) see Lim Poh Choo v Camden and Islington Area Health Authority. It was held that the claimant will have to change life style, so the employer is liable in breach of duty in providing health and safety to his employees. In this scenario, Geoff now cannot do his hobby again and also will never be able to drive a car again.
In this scenario there are many issues that are relevant in employment law. The most responsible person in the organisation is Mr Gervais. As an employer Mr Gervais has many responsibilities, duties and issues to overcome. In the situation with his employee Geoff it can be proven that Mr Gervais is liable for a breach of contract of employment. Therefore, Geoff can sue his employer for breach of duties and request compensation. It is suggested that Geoff also needs to check if there are available benefits for him, as it is major injury he suffered. All his life now is affected and will change.
To conclude, there are various issues relevant to employment law. There are many regulations and acts applied. Most of the issues are connected with Health and Safety at Work Act 1974. Mr Gervais seems to ignore most of the legal requirements in respect to the employment law in his organisation: safe equipment, workplace safety and his employee’s safety and health. In order to avoid problems concerning breach of employment law and claims against him, Mr Gervais should start to control work in his company more effectively.
References
Cooke, J. Oughton, D. (1993) The Common Law of Obligations, 2nd Ed.
Daniels, K. (2008) Employment Law: An introduction for HR and Business Students, 2nd Ed. London, Chartered Institute of Personnel and Development
Duddington, J. (2007) Employment Law, 2nd Ed. Essex, Pearson Education Limited
Harlow, C. (2005) Understanding Tort Law, 3rd Ed. London, Sweet & Maxwell
Hodge, S. Turner, C. (2004) Unlocking Torts. Hodder & Stoughton
Jefferson, M. (1997) Principles of Employment Law, 3rd Ed. London, Cavendish Publishing
Nairns, J. (2004) Employment Law for Business Students, 2nd Ed. Essex, Pearson Education Limited
Rogers W.V.H (2002) Winfield and Jolowicz on Tort. Sweet & Maxwell
(2004) Your Rights at Work, 2nd Ed. London, Kogan Page Limited
Table of Cases
Aldred v Nacanco
Berkoff v Burchill
Blyth v Proprietors of the Birmingham Waterworks
Fryer v Pearson
Harrison v Michelin Tyres
Haseldine v C A Daw & Son Ltd
Heil v Rankin
Hicks v Chief Constable of South Yorkshire
Hudson v Ridge Manufacturing Co
John Summers & Son v Frost
Lim Poh Choo v Camden and Islington Area Health Authority
Marshal v Gotham Co Ltd
Mc Williams v Sir Villiam Arral
Parmiter v Coupland
Pickford v ICI
Pursell v Horn
Scott v Shepherd
Smith v Crossley Bros
Spring v Guardian Assurance plc
Vizetelly v Muddie’s Select Library
Walker v Northumberland County Council
Ward v Tesco Stores
Woodward v Mayor of Hastings
Table of Statutes
Defamation Act 1952
Employers Liability Act 1880
Employer’s Liability (defective equipment) Act 1969
Health and Safety at Work Act 1974
Management of Health and Safety at Work Regulations 1999
Manual Handling Operations Regulation Act 1992
Occupiers Liability Act 1984
Workplace (Health, Safety and Welfare) Regulations 1992
The Health and Safety (Display Screen Equipment) Regulations 1992
Bibliography
- Books
Adams, A. (2008) Law for Business Students, 5th Ed
Cooke, J. Oughton, D. (1993) The Common Law of Obligations, 2nd Ed.
Daniels, K. (2008) Employment Law: An introduction for HR and Business Students, 2nd Ed. London, Chartered Institute of Personnel and Development
Duddington, J. (2007) Employment Law, 2nd Ed. Essex, Pearson Education Limited
Harrison, T. (2000) Employment Law, 4th Ed. Durham City, Harrison Law Publishing
Harlow, C. (2005) Understanding Tort Law, 3rd Ed. London, Sweet & Maxwell
Hodge, S. Turner, C. (2004) Unlocking Torts. Hodder & Stoughton
Jefferson, M. (1997) Principles of Employment Law, 3rd Ed. London, Cavendish Publishing
Lewis, D. (2007) Essentials of Employment Law, 9th Ed. London, Chartered Institute of Personnel and Development
Lockton, D. (2007) Employment Law 2007-2008, 5th Ed. Oxon, Routledge-Cavendish
Nairns, J. (2004) Employment Law for Business Students, 2nd Ed. Essex, Pearson Education Limited
Painter, W. R. Holmes, A. (2006) Cases & Materials on Employment Law, 6th Ed. Oxford, Oxford University Press
Pitt, G (2007) Employment Law, 6th Ed. London, Sweet & Maxwell Limited
Rogers W.V.H (2002) Winfield and Jolowicz on Tort. Sweet & Maxwell
(2004) Your Rights at Work, 2nd Ed. London, Kogan Page Limited
Sweet & Maxwell (2008) Ecyclopedia of Employment Law 1.London, Thomson Reuters Limited.
- Internet Resources
http://www.hse.gov.uk/pubns/indg244.pdf (accessed 9 April 2009)
http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1974/cukpga_19740037_en_2#pt1-pb2-l1g2 (accessed 9 April 2009)
http://www.tendringdc.gov.uk/TendringDC/Business/Health+and+Safety/indg244x.htm (accessed 9 April 2009)
http://www.atl.org.uk/health-and-safety/legal-framework/employees-duties.asp (accessed 9 April 2009)
http://www.dwp.gov.uk/resourcecentre/leaflets_guides.asp (accessed 9 April 2009)