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How does HR fulfil a duty of care to protect employees?

Duty of care has recently hit the national news headlines. A former contestant on the reality talent show The X Factor is aiming to sue the programme’s producer Simon Cowell and his production company over an alleged breach of duty of care.

Katie Waissel, who appeared on the TV series in 2010, has revealed she received therapy for post-traumatic stress disorder (PTSD) after suffering panic attacks and suicidal thoughts linked to her experiences of the show. She is now intending to pursue a civil case of personal injury regarding negligence.

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Although there’s still a long way to go in this case – the statute of limitations on cases of this type is three years, meaning Waissel will have to first convince a judge that her case has merit – it’s a situation that’s likely to raise questions for HR professionals.

Allegations being made against Cowell’s production company relate to failures to safeguard Waissel’s mental health, and the conditions she suffered as a result. It’s reported that the contestant was labelled a hate figure after appearances on the TV show, leading to her receiving death and acid-attack threats.

These claims highlight the complexities faced by HR when it comes to fulfilling a duty of care.

At present, it doesn’t seem complaints are being made about Waissel’s direct treatment as a contestant when she was on stage or during rehearsals, which would be considered her place of work.

Instead, a case is being made about the experiences suffered outside of the physical work environment.

Such circumstances can cast a shadow over the responsibility of an employer and their obligations to effectively uphold a duty of care. Can an employer control situations and negative experiences that occur outside of the workplace?

It seems unreasonable, for example, to think Cowell’s production company can stop a contestant receiving threats or being hated by audiences.

However, a company has a legal responsibility to take the necessary steps to support an individual when the nature of their work risks negatively affecting their health and wellbeing.

Duty of care is a legal term and there is no specific piece of legislation which defines it.

Instead, the courts use several different tests to establish whether a duty of care is owed by one party to another.

Employers are under a common law duty to take reasonable care of the health and safety, and wellbeing of employees in all circumstances and should not expose them to unnecessary risks. The duty of care extends to physical and mental health.

Therefore, as a first step towards fulfilling a duty of care, it’s important that employers complete full risk assessments, and implement safety measures that protect staff.

This must not be confined to the parameters of working hours and the places of work. It must consider how an employee’s work duties affect them as a person, and not just in their professional capacity.

Employers are best placed to provide training to employees to help them deal with risks, and to create an open line of communication that allows workers to easily raise any concerns they have. Engagement with employees is crucial to fully understand how work is affecting staff.

It provides HR with the insights and ability to act quickly and can avoid an escalation of issues leading to the possible failure of duty of care.

It's also important that employees are aware of what support is available to them. If they know how they are protected, they will be more inclined to seek help when needed.

Similarly, communication of resources will help flush out any perceived inadequacies among staff of what’s available to support them.

This creates opportunity for HR to really consider how employee-centric their duty of care is and develop measures that truly meet the needs of the people whose health and wellbeing they are trying to protect.

Employers are not expected to completely eradicate risks for employees to uphold a duty of care. They do risk prosecution though if they’ve not taken all reasonable measures to manage and mitigate risks to protect employees. It’s the validity of the latter that’s likely to prove significant in any case brought by Waissel.

Andrew Halpin is a senior associate specialising in employment law and HR at Forbes Solicitors