Working safely at height

An accident is in a small corner, but when is the employer liable?

Working at heights involves risks. A small misstep can have disastrous consequences. Not surprisingly, high demands are placed on an employer's duty of care in the roofing sector. That this duty of care is very far-reaching is shown by the following example from case law.

An auxiliary scaffolder falls through a corrugated iron roof and falls four to five feet to the ground. At the time of the fall, the employee was wearing a harness, but he did not put it on himself. The employee suffers serious physical and psychological injuries as a result of the accident. Despite the fact that the employer has a very comprehensive safety policy, with a corresponding sanctions policy, and despite the fact that the employee did not leash himself, the judge rules that the employer did not fulfill its duty of care and is liable for the employee's significant injury. This is because, according to the judge, in the specific case, the employer did not sufficiently supervise compliance with safety rules.

So there is a great responsibility on an employer in creating a safe and healthy work environment. But exactly how far does the duty of care extend for an employer in the roofing industry, where does violation of it lead and how can liability be avoided?

The (far-reaching) duty of care

An employer has a duty to ensure a safe and healthy working environment. This duty of care means - in short - that the employer must do everything possible to ensure that the employee does not suffer harm in the performance of his work. When a situation is dangerous, such as when working at 2.50 meters or higher, the duty of care extends far, because the risks are great.

The duty of care is fleshed out by the relevant laws and regulations. For example, there are many specific obligations that employers and employees must comply with to protect health and safety. Examples include rules on fall protection when working at height, wearing safety clothing and harnesses, or rules on working hours to prevent overtiredness. The employer is also obliged to take additional measures to prevent damage. This can take the form of training, proficiency testing, one-point instruction (EPL) and the establishment of mandatory work routines. The employer also has a duty to instruct. He must give specific instructions and ensure that employees continue to wear fall protection, for example, and do not work at heights without protective equipment. In doing so, the employer must also take into account the fact that employees will not always follow safety rules in routine work out of convenience.

If the employee does incur an injury while working and it is established that the employer has failed in its duty of care, this can lead to liability of the employer for the (often large) damages incurred by the employee. Moreover, the Inspectorate SZW can impose large fines if it is found that the employer was not careful enough.

What about self-employed and temporary workers?

It is important to note that liability also extends to hired staff, such as temporary workers and self-employed workers. With respect to a self-employed worker, the work he performs must be part of the employer's "normal business operations. A painter who is hired as a self-employed person to paint the premises of a (solar panel) installation company is not doing work that belongs to the normal business operations of that installation company. A self-employed person hired by that company to install solar panels does. An employer has the same duty of care with respect to that self-employed worker as it does for all other employees within the company.

Tips!

What can you do now to prevent workplace accidents and/or resulting liability?

• List all risks with a (mandatory!) RI&E

Using a Risk Inventory & Evaluation (RI&E), the risks involved within a company can be identified. Based on this, appropriate measures can be taken.

• Maintain a zero tolerance policy

Ensure workers are aware of safety policies, implement repeat training and EPLs, and have workers sign for attendance. Conduct concrete workplace monitoring, such as spot checks, and send workers home if they do not follow safety rules.

• Make sure you have a good insurance policy that also covers injuries to self-employed workers resulting from a workplace accident.

Since an accident is in a small corner, the risk of an industrial accident and the resulting potential liability remains. For the employer whose employees work at (great) heights, the proverbial "bar" with regard to the duty of care is also high and, as an employer, you do not get off lightly. So work to be done!