Employer Responsibilities In Construction

Introduction

The law has put in place various mechanisms that guide on how the employers should take regard in ensuring that the health and safety measures are complied with in the course of the work that the employees perform. The duty squarely relies on the employers to comply with the requirement of the law to the latter without any compromise because life is sacred and has to be protected by all means. This therefore implies that the legislature and other quasi-legislating institutions in their own wisdom had their own wisdom to ensure that hazards are limited as much as they can. The paper concentrates on the possible omissions and commissions that the employers of Mick, Jonny and Pat contributed towards the unfortunate series of events that thereby occurred. In so doing, the paper will have regard of the various provisions of the law and the regulations that have been formulated to address the sector of construction specifically and employment generally.

The working conditions in which Mick did his daily job did not reflect the safety measures that Badguys ought to provide to the workers in such an environment. A case related to negligence strongly stands against the management of the Firm. It is quite evident that Mick was working underneath a floor that had other workers what did the construction work; and that he had made an attempt to request to the site manager to provide him with a hard hat but to no avail. The nature of the work definitely demands that a worker must have a protective head gear since the works upfront may result into some particles inadvertently falling down over the head of an employee as in the case of Mick. Mick overheard him while making a call, suggesting that he had no reasonable and tangible grievances. An inference may be made that the Site Manager knew what he was expected to do and most likely, that was the reason as to why Mick did not find him. His absence was therefore stage-managed. Furthermore, Work and Height statutory

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The criminal liability of an employer and the weight of an employee’s case against the former will be affected by both law on the subject matter and facts. Safety of either parties at the workplace is a responsibility of both the employer and employee. The Act requires an employee to take reasonable care for the health and safety of employer and others at the workplace. He must exercise reasonable care and skill when undertaking his duties. Employers are required by law to maintain safety standards at the workplace by putting into place safety equipment and safe systems of work

As a result of the harm that Mick got, criminal culpability exists and someone must take the responsibility. Once the investigations are conducted diligently by the authorities, is my humble view that they will institute criminal proceedings. The site manager ought to be charged with criminal negligence in a court of law. In the course of the trial and prosecution of the site manager, he can raise a defense of contributory negligence. He may aver in his submission that Mick did not take due care expected of a reasonable employee working in such a construction firm. Further, he may aver that he did not get Mick was directed to take the head gear but he had not actually gone for it. In accordance with the Health and safety Act, the Site Manager upon if found guilty is liable either to a summary conviction not exceeding two years or fine or to both.

Mick lost his job as result of injuries sustained at the workplace. Regardless of the cause of injury to an employer, he or she still has rights that must be respected by the employer. Laws surrounding employment and safety of employees are key to Mick’s case. Employers are almost always at an advantaged position in terms of bargaining power. Therefore it becomes very easy for them to relieve employees of their duties. For this and other reasons the law is in place to ensure the protection of the rights of an employee and also to control the relationship between the employer and employee. Without labour and workplace safety laws employees would work at the mercy and whims of employers. Again an employer generally adopts a position of authority and power to direct and control how work is conducted.

Power corrupts but absolute power corrupts absolutely. Employers in position of power can be tempted to mishandle and mistreat employees. Fortunately, the right to fair administrative action and fair hearing is sacrosanct and cannot be blatantly be abrogated. Before any employee is dismissed from his place of work, they must be accorded fair hearing. This requirement cannot be dispensed with at the whim of an employer. The law must be followed as stipulated in the relevant statutes and as prescribed in supporting regulations.

Any person who has been in an employment relationship and is summarily dismissed either verbally or in writing has a recourse at law. There are options available to such a person, one of which involves labour court proceeding and the other adjudication by labour officer. Dismissal on account of absenteeism has its prescribed procedures under statute and cannot be dispensed with notice.

Mick has a civil remedy to pursue against Badguys. He was unfairly relieved off his duties and summarily dismissed. Contrary to the express provisions of the employment law, he was not given any notice that he would be dismissed. A show cause notice is very mandatory while an employee is to be relieved off his employment duties, regardless of the position and the work that the said employee does. If he convinces the labour tribunal, he may be awarded damages that he suffered as result of the injuries and if he asked for reinstatement, the tribunal may order the company to take it back.

The law put an obligation on the employer to ensure so far as is practicable the health and safety of the employees at all material times. In so doing, any work under the control of the employer, the tools that the employees use should be proper. The manual puts the duty on the employer to take notice that as new workers are at risk when instructed to perform tasks that they do not have experience on. Guidance 4(3) says that when one is deciding if there is a risk of injury, he/she must take account of the results of any relevant risk assessments under the Management Regulations.

Section 2 of the HSW Act and regulations 10 and 13 of the Management Regulations require you to provide your employees with health and safety information and training. You should supplement this, as necessary, with more specific information and training on manual handling injury risks and prevention as part of the steps to reduce risk required by regulation 4(1) (b) (ii) of the Regulations. Regulation 4(1) (b) (iii) requires the employer takes appropriate steps to provide general indications and, where it is reasonably practicable to do so, precise information on the weight of each load, and the heaviest side of any load whose centre of gravity is not positioned centrally. The employer failed to have due regard of the statutory law thus the crown can institute criminal proceedings against the employer, in which case, the site manager will have the criminal responsibility.

Verily, the criminal courts have the jurisdiction to handle the matter. The site manager can be charged with the offence of failing to discharge duty under the Health and Safety Act, Section 2 as provided for in section 33. Additionally, he can be charged with the offence of contravening any requirement imposed by or under the regulation, which herein is the Manual. If the court finds him guilty, it shall sentence him to a term not exceeding 2 years or to fine or to both.

Civil law remedy: Jonny can surely opt for a civil suit in order to pursue remedies that the law provides him. Jonny’s claim against Badguys may lie in the form of negligence which thereby resulted in his injuries. Negligence is a civil wrong that can be pursued in law of tort. The law of tort through cases like Donoghue v Stevenson presupposes that a person is liable for acts of omissions that they would have reasonably foreseen as affecting someone within their proximity.

In this case Badguys Construction owes Johnny a duty of care and should have taken steps to ensure that Johnny has a proper and safe ladder. The construction company could reasonably foresee that the use of such a ladder would likely cause an accident at the workplace. Their actions are the direct cause of Johnny’s injuries. Therefore Johnny has a remedy in tort and can successfully sue Badguys in tort for general damages and special damages arising from injuries suffered as result the company’s negligence.

In defense of Badguys, they can raise the issue of contributory negligence on the part of Johnny. They can bring up the issue of Johnny carrying three blocks over and above his normal working abilities. Again they can state that he was acting without care as result of unwarranted encouragement from his workmates who thought he was very helpful. Contributory negligence has the effect of reducing the amount of damages one can claim and be awarded. Badguys can also bring forth the defense of volenti non fit injuria. This maxim simply implies that to a willing person, no injury is done. Essentially, they can proceed to aver that by agreeing to work under such dangerous conditions, Johnny consented to all the attendant risks and can therefore not claim for injury suffered.

Alternatively, Badguys have at their disposal the defense of inevitable accident. They may successfully plead that the nature of the accident was such that there was nothing that could have been done to avert it. This defense will stand if they can show that indeed the accident occurred without any fault or negligence on their part. As to the merits of this and other defenses depends on the circumstances of the case as the present.

Additionally, he can opt for a suit against the purported dismissal that the employer meted on him while he was away. In regard to the summary dismissal that he was subjected to, he should pray for an order to quash the decision of Badguys so that as he handles the issue, he can be allowed to continue with his duties at the company. Within the fulcrum of civil law, Jonny has a claim against Badguys, the rational being that he cannot get compensation from the criminal courts. It is also prudent that he can wait for the criminal trial to proceed and get over then upon conviction; he can approach the civil court for tortuous claim.

However, if he senses any delay that might hurt his case, he can file the civil suit to run simultaneously with the criminal trial. It is noteworthy that he must plead the particulars of each claim. On negligence, he must prove three things; that the employer had duty of care, that the employer breached the duty of care and lastly, that the breach of the duty of care resulted in the injuries he sustained. He must plead specifically that he has spent money for treatment and other. He will not hesitate to prove that it is the duty of the employer to provide him with the tools of work that is stable and fit. The breach of the duty of care is self-evident as he was not provided with the required too. The risk associated with his work was not taken into consideration, as the manual and the regulations provide that an employer must take care of new and young employees.

The forum where he can seek the remedy regarding his is the employment tribunal in the United Kingdom. The constitutional bodies have the jurisdictional mandate to hear and make determination based on all employment matters and to some extent labour related issues. Time is of the essence when contemplating the remedy that these courts grant. In most cases, they hitherto can only entertain matters claims that took place within the timeframe of three months less one day. The court was basically instituted to deal with cases whereby an employee unfairly dismisses an employee without any reasonable ground. The key matters that the court determines on are unfair dismissal and discrimination.

The company however is likely to vigilantly and zealously raise defenses that that the common law has recognized for a very long time. For instance, Badguys may rely on contributory negligence. The company may claim that the injuries that the claimants aver were as a result of his own fault. The employer may buttress this argument by reasoning that had he carried out his work diligently and effectively, the said work accident would not have occurred. Furthermore, the respondent may oppose the claim on the ground of comparative negligence. In this defense, the company may convince the court to apportion the percentage of negligence to the parties based on the degree in which each party to the suit have contributed to the injury complained of and sustained by the claimant. In relying on this defense, the court will look into whether the respondent could foresee that the accident could actually take place. Further, it will also question the claimant as to whether he had sensed that the step ladder that Jonny was using was in good condition and if not so, whether he made a report thereof.

A strong criminal case stands out in the circumstances leading to Pat’s death. The law put obligation of ensuring that the health and safety of employees are given prominence in the course of the duties of the later. The regulations back this assertion by highlighting comprehensively the obligations that the employer must do to implement the enactment. In particular, the full letter of the lawyer is that an organization is guilty of manslaughter if it causes the death of a person’s by its activities. Depending on the region, such an offence is regarded as corporate manslaughter or corporate homicide. The authorities can prosecute the employer in the court of law even as other offences that have been discussed herein above take place. The overriding objective of the court and the whole process is to ensure that justice prevails at the end of it all. It must not only be done but seen to be done.

The offence of corporate manslaughter can only be charged and prosecuted in the High Court. The case is sustained only if the death was occasioned by the failings of senior management as opposed to a junior level. Such prosecution commence only after the Director of Public Prosecution has given the consent to do. The rationale behind trying corporate manslaughter in the high court is because there is high threshold for liability that must be strictly looked at and the strict proof that the prosecution must satisfy in the course of presenting the evidence before the court. In reality, the Prosecution must convince the court beyond reasonable doubt just as required by the common law doctrine that there was breach of duty which was causative to death. In so doing, the test that the court must regard is whether the said breach resulted into a more than contribution the death.

The law requires that the employees are given prerequisite training before they are instructed to carry out their duties. Furthermore, the employee should be provided with personal protective equipment. All these are the obligations of the company which the employees work for. As the facts herein show, Badguys did not avail to Pat the safety gear the dangerous exposure notwithstanding. The firm did not regard the provisions of the Health and Safety Act as well as the handling manual (1992). Should it have implemented and enforced the law and regulations to the letter, the demise of such an innocent life would not have taken place. It even failed to take notice that the deceased was new to the firm hence the need to be very careful while instructing him with the day to day operations.

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Conclusion

In conclusion, the paper holds that the law is enacted to cure a mischief that is likely to happen. Human activity is subject to human weaknesses thus due to the capitalistic maladies associated with wealth making and scramble for the limited natural resources, there is likelihood that the corporate world may not naturally have the duty of care of human beings. Consequently, the crown expects the individuals and corporations to adherer with the requirements the law and regulations put on them. The treatment that Badguys subjected the three workers, Mick, Jonny and Pat was uncalled for. The omission and commission must be punished by the law as explained herein above.

References

  • Control of Substances Hazardous to Health Regulations 2002
  • Corporate Manslaughter and Corporate Homicide Act 2007
  • Health and Safety at Work etc. Act 1974
  • Manual Handling Regulations 1992 (as amended)
  • Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013
  • Work at Height Regulations 2005
  • Donoghue v Stevenson [1932] UKHL 100
  • Kirby J. Employers' Liability and Concussive Injury in Professional Rugby Union: The Application of Health and Safety Legislation to Concussive Injury in Professional Rugby Union in the UK and Ireland. (ESLJ. 2015)13:18.
  • Lederman E. Corporate Criminal Liability: The Second Generation. (Stetson L. Rev. 2016) 46:71.
  • Simons, Kenneth W. Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality. San Diego L. Rev. 55 (2018): 357.
  • Soltani S, Ramazani A. Criminal Liability and Crime and Punishment Proportionality in the Crime of Legal Entities. (J. Pol. & L. 2016) 9:61.
  • Ferrara SD, Boscodberto R, Viel G. Personal Injury and Damage Ascertainment Under Civil Law. (Springer; 2016)
  • Goldberg JC, Sebok AJ, Zipursky BC. Tort Law: Responsibilities and Redress. (Aspen Publishers 2016)
  • Zillman DN, Simmons JH, Gregory DD. Maine Tort Law. (LexisNexis; 2015)

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