Charities’ general duties of care

Charities and voluntary organisations are likely to have “duties of care” to a range of people – including staff, beneficiaries and volunteers. Duties of care, in the legal sense of the term, can arise for a range of reasons.

Whether these duties will arise and what they entail varies, depending on the nature of the relationship between the organisation and the person in question, in the entirety of the circumstances. A breach of a duty of care by an organisation can result in legal action being brought against that organisation in the courts.

This guide gives some examples of scenarios that might result in a legal duty of care arising, but whether this happens ultimately depends on the specific circumstances involved.

There are two main different types of duties of care:

• statutory duties of care
• common law duties of care.

The Health and Safety at Work Act 1974 sets out most of the statutory duties of care for UK employers. The Act states that employers have a duty to ensure the health, safety and welfare of their employees at work, so far as is reasonably feasible.

This includes by providing a safe working environment. Employers also have a duty to ensure, so far as is reasonably feasible, that other people are not exposed to risks to their health and safety by coming into contact with the employer. This will include volunteers and service users.

A charity that owns or leases premises will also have a statutory duty of care to ensure that their visitors will be reasonably safe when using the premises. However, this duty does not extend to individuals who are not lawfully on the premises or who don’t have permission to use the premises.

Where the statutory duty to employees does not apply (for example, for staff overseas, volunteers or contractors), a comparable common law duty of care usually applies instead. This means organisations are required to take reasonable care to devise and operate a safe system of work, with competent staff, adequate plant and equipment, and a safe place of work.

Key statutory duties of care on employers

Civil liability arises where one party is responsible for actions and practices that could damage others, but which aren't criminal. Since 1 October 2013, organisations can no longer be found liable in civil law for breaching a statutory duty concerning health and safety, unless the relevant regulation explicitly provides for such liability. In most cases, claimants will also have to prove that their employer was negligent.

Reference: Section 47 of the Health and Safety at Work Act 1974, as amended by section 69 of the Enterprise and Regulatory Reform Act 2013

Under the Management of Health and Safety at Work Regulations 1999, Employers are required to manage the health and safety aspects of their activities in a systematic and responsible way. The regulations require organisations to:

• carry out ‘suitable and sufficient’ risk assessments,
• have access to competent health and safety advice
• put in place emergency procedures.

Reference: Management of Health and Safety at Work Regulations 1999, made under section 47 of the Health and Safety at Work Act 1974

There are prescribed legal requirements for dealing with fires (including requirements for fire certificates). All employers must assess the fire risks for their organisation and ensure there are adequate fire precautions in place. The assessment must take into account:

• fire prevention measures
• fire detection and alarm equipment
• fire escape routes and evacuation procedures
• firefighting equipment and fire-related signs.

Reference: Regulatory Reform (Fire Safety) Order 2005

Any organisation that occupies premises has a duty of care to ensure that lawful visitors will be reasonably safe when using the premises for pre-agreed purposes.

Reference: Occupiers’ Liability Act 1957

This Act imposes a duty of care on occupiers to take reasonable steps to offer protection to unauthorised visitors.

Reference: Occupiers’ Liability Act 1984

An individual or organisation cannot avoid liability for death or personal injury from negligence, even if they say in a contract or a notice that they will not be liable.

In the case of other loss or damage, a person cannot exclude or restrict his liability for negligence except where reasonable.

Reference: Section 2 of the Unfair Contract Terms Act 1977

Under common law (sometimes called case law), charities also have a duty of care to take reasonable steps to prevent foreseeable harm to anyone who has a ‘relationship of proximity’ with them. This includes overseas employees, volunteers, beneficiaries, contractors, third parties or members of the public.

A ‘relationship of proximity’ can be the result of:

• a formal agreement
• other circumstances, where the actions (or omissions) of one party closely and directly affect the other.

Broadly speaking, a duty of care under common law will arise where it is fair, just and reasonable for it to do so.

This can include where:

• one party reasonably relies on the other acting for his or her protection (or benefit)
• one party exercises control over the circumstances giving rise to a danger
• one party assumes responsibility for the circumstances giving rise to a danger
• in providing specialist advice.

Key examples of case law that have resulted in common law duties of care

This case sets out a three-stage test for determining whether a duty of care is owed to one person by another.

This test considers whether:

• the damage incurred was foreseeable
• there is a sufficient ‘relationship of proximity’ between the parties involved
• it’s fair, just and reasonable to impose a duty of care.

Reference: Caparo Industries v Dickman [1990] 1 All ER 568

If an employer knows that one of their employees is causing physical or mental harm to a fellow employee, but does nothing to supervise or prevent it (when it’s in their power to do so), the employer is in breach of their duty of care.

This also includes where an employer anticipates that an employee may be harmed physically or mentally by the actions of a colleague.

Reference: Waters v Metropolitan Police Commissioner [2000] UKHL 50

An employer has a duty of care to ensure that the volume or nature of an employee’s work doesn’t cause them psychiatric damage. An employer can assume that the employee can withstand the normal pressures of the job unless they know of a reason particular to that employee why this might not be possible (for example, if the employee has a health condition that means they are more susceptible to stress).

The key question is whether an injury to health caused by stress at work is reasonably foreseeable in the individual employee concerned. This will depend on the interrelationship between the characteristics of the employee concerned and the demands of their job.

The general test is whether an employer takes reasonable steps to ensure the safety of their staff in light of what they know (or ought to know) about each individual.

References:

• Hatton v Sutherland [2002] EWCA Civ 76
• Barber v Somerset County Council [2004] UKHL 13

This case concerned an individual employed by the Norwegian Refugee Council (NRC) who was injured and kidnapped, along with three colleagues, following an attack during a visit to a refugee camp. The court found that the NRC had acted with gross negligence because the risk of kidnapping was foreseeable and the NRC could have implemented mitigating measures to reduce and avert the risk of kidnapping.

This case highlights that mitigating measures by an employer must be proportionate to the risk. Therefore, employers may need to adopt stronger security risk management procedures depending on the context they’re operating in. In addition, an essential component of an employer’s duty of care in high-risk environments is their employee’s ‘informed consent’. This means individuals must understand the risks they may be exposed to in high-risk environments and consent to that potential exposure.

Reference: Dennis v Norwegian Refugee Council (25 November 2015) Although a case in the Oslo District Court, this was a landmark case that is relevant to organisations working in the international aid sector.

It’s possible for employers to be held accountable for actions committed by an employee carried out in the course of their employment. This is known as ‘vicarious liability’.

For example, an employer might be liable for actions such as bullying, harassment, violence, discrimination and libel. Whether or not an employer is liable will be determined by whether the employee acts in a personal capacity or in the course of their employment.

Even where there is no contractual employment relationship, the courts may still hold an organisation vicariously liable for the actions of people working on its behalf, including volunteers.

How the courts determine vicarious liability

The courts have adopted a two-part test to help them determine vicarious liability:

1. Is there a relationship between the wrongdoer and the person alleged to be liable that amounts to vicarious liability? The relationship will usually be one akin to employment.
2. Is the connection between that relationship and the wrongful act or omission so close that it involves a strong causative link?

In determining whether a relationship is akin to employment, the courts will consider:

• the extent of the organisation’s control over the individual
• the extent to which the individual’s activity was central to the function of the organisation
• whether the individual was integrated into the organisation
• whether the individual was more like an independent contractor than an employee.

If these conditions are met, an employer could be found to be liable for the behaviour of a third party.

Key examples of case law on vicarious liability

Employers will be liable for any wrongdoing committed by an employee where there’s a sufficient connection between the employment and the wrongdoing.

In this case, Mr Mohamud was successful in his claim that Morrison Supermarkets should be vicariously liable for the violent and racist acts of an employee at work.

Reference: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11

This case resulted in the two-part test outlined at the top of this page.

Reference: Cox v Ministry of Justice [2016] UKSC 10

Under the Equality Act 2010, employers can be liable for harassment committed by an employee against another employee.

Reference: Section 40 and Section 109 of the Equality Act 2010

For an individual to succeed in a claim for negligence, the courts must first establish:

• that a statutory or common law duty of care is owed to the individual
• that the duty has been breached, and that breach then caused the individual to suffer harm
• that the harm to the individual was foreseeable.

A court would normally assess whether a duty of care has been breached using ‘the reasonable person test’. This involves asking what a reasonable person would have done, or not done, in the circumstances of the incident.

The court will consider factors such as:

• the organisation’s capacity
• whether the individual acknowledged and agreed to undertake the particular risk
• the cost and difficulty of taking precautionary measures
• the extent of the potential risk to the individual
• the seriousness of any likely injury
• how much the organisation knew about the risks involved
• industry standards
• whether the organisation held itself out as an expert in the advice that it gave.

When making these decisions, courts will also consider whether:

• taking precautions against a risk, in line with a duty of care, could prevent a desirable activity from being undertaken or discourage persons from trying to bring about a desirable outcome.
• a defendant was doing something for the benefit of society, such as volunteering, organising an event or clearing snow
• a defendant demonstrated a responsible approach towards protecting the safety or interests of others
• a defendant was acting heroically by intervening in an emergency to help someone in danger.

These considerations help to ensure that negligence claims are reviewed fairly.

If a claimant is successful in claiming the organisation was negligent, they’ll usually seek financial compensation.

Key examples of legislation involved in demonstrating a breach of duty of care

This act states that, when determining whether a duty of care has been breached, courts must consider whether:

• the alleged negligence or breach of statutory duty occurred when the defendant was acting for the benefit of society or any of its members
• the defendant demonstrated a responsible approach towards protecting the safety or interests of others
• the alleged negligence or breach of statutory duty occurred when the defendant was acting heroically by intervening in an emergency to help someone in danger.

This act is designed to lower the risk of liability of volunteers, community groups, businesses and people who step in heroically to help in dangerous circumstances. It followed concerns that people were being put off from doing good deeds for fear of legal action if something went wrong.

Reference: Social Action, Responsibility and Heroism Act 2015

Section 1 of the Compensation Act 2006 states that, when determining whether a duty of care has been breached, a court may consider whether steps which might be taken by a defendant to meet a duty of care would:

• prevent a harmful activity from happening
• discourage people from undertaking a harmful activity.

Reference: Section 1 of the Compensation Act 2006

The general rule is that a claimant has six years to bring a claim for negligence, nuisance or breach of duty from the time they suffer damage.

The time limit for bringing a personal injury claim is three years.

However, there are certain circumstances when a court may exercise its discretion to allow an individual to bring a claim for personal injury or death after this time.

References:

• Section 2 of the Limitation Act 1980
• Section 11 of the Limitation Act 1980
• Section 33 of the Limitation Act 1980