In addition to the duties owed to employees, employers have legal obligations to safeguard the health and safety of others, including visitors and trespassers, at their workplaces. Failing to address those obligations exposes employers to criminal and civil liability.

Criminal Liability

The Safety, Health and Welfare at Work Act 2005 (the "2005 Act"), under Section 12, imposes a duty on every employer to "manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare." In addition, Section 15 imposes a duty on persons in control of a non-domestic place of work where persons other than their employees are working to ensure, so far as reasonably practicable, that the means of access to and egress from that workplace, or any article or substance provided for use at that workplace are safe and without risk to health.

Breach of either duty is an offence, which may result in potential fines of up to €5,000 or imprisonment for a term of up to 12 months, or both, for each offence prosecuted in the District Court or, for more serious offences prosecuted on indictment in the Circuit Court, to a fine of up to €3 million or imprisonment for a term of up to two years, or both, for each offence. In a recent (July 2011) Dublin Circuit Criminal Court prosecution, an employer company was fined €250,000, under Section 12, for the fatal injury of a member of the public struck by a bundle of fencing which fell from the top bay of storage racking at a garden centre.

Civil Liability

Employers may also be exposed to civil liability in respect of persons other than their employees, under the Occupier's Liability Act 1995 (the "1995 Act"). The 1995 Act imposes duties on occupiers towards trespassers and recreational users (not to injure or damage his/ her property intentionally and not to act with reckless disregard for the person or his/her property) and towards visitors (to take reasonable care). In determining liability, the 1995 Act sets out specific criteria which must be considered by the courts, including:

  • whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
  • whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises.
  • whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
  • the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing;
  • the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity; the nature of any warning given by the occupier or another person of the danger; and
  • whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other's activities.

In broad terms, the extent of the measures required to comply with the duties owed to persons other than employees under either civil or criminal regime should be determined based on the nature and level of the risk against the cost and 'reasonableness' of carrying out those measures. In practical terms, there will be overlap between the measures taken to address risks to employees and to non-employees. Employers should, however, put in place additional safety measures to mitigate the risk of injury or death to outsiders. At a minimum, those should include measures to properly secure the workplace/site and/or source of any danger and appropriate warning notices.

Health and Safety Record Retention

There is no provision in the 2005 Act requiring the retention of health and safety records for any specific period. There is, however, provision for an inspector from the Health and Safety Authority ("HSA") to direct the retention of certain records for a period specified (being such time as he or she considers reasonable), under Section 64 of the 2005 Act.

Regulations made under the 2005 Act do also sometimes require employers to maintain records for specified periods. In particular, an employer is required to keep a record of any accident or dangerous occurrence reportable to the HSA for a period of ten years from the date of the accident or dangerous occurrence. In addition, employers are required to ensure that a health record in respect of each of its employees who undergoes health surveillance is made and maintained and to keep records in relation to potentially dangerous equipment and areas for up to five years from the date of inspection/examination.

Apart from compliance requirements under legislation, there may be specific requirements under private insurance provisions (or other private arrangements) that require the retention of health and safety records for longer periods.

More generally, any breach, or potential breach, of health and safety obligations gives rise to criminal and civil penalties, the defence of which might be impeded if records were no longer available. From this perspective, a careful review should be undertaken in each instance to determine whether or not it is safe or prudent to dispose of records, taking into account the various limitation periods applicable to the initiating of criminal and civil proceedings. There is a twelve month limitation period applicable to the initiation of summary proceedings in the District Court under the 2005 Act, but there is no limitation on the taking of proceedings on indictment. The time limit for taking a civil claim for personal injury is two years from the date of the accident, under the Civil Liabilities and Courts Act 2004.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.