How business leaders can avoid failing with ‘duty of care’

In this guest article, Andrew Halpin, Senior Associate specialising in employment law and HR at Forbes Solicitors, discusses how companies can avoid failing their duty of care, using the case study of Katie Waissel sueing Simon Cowell and his company.

Recent national news headlines about TV show The X Factor may, surprisingly, have caught the attention of business leaders, and raised questions about their responsibilities for the health and wellbeing of employees.

Katie Waissel, a former contestant on the talent show, has retrained as a lawyer and is planning to sue the programme’s producer Simon Cowell and his production company over an alleged breach of duty of care.

Having appeared on The X Factor in 2010, Ms. Waissel 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.

Allegations being made against Mr. Cowell’s production company relate to failures to safeguard Ms. 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.

There’s still a long way to go in this case – the statute of limitations on cases of this type is three years, meaning Ms. Waissel will have to first convince a judge that her case has merit. However, it is a situation that highlights the complexities faced by business leaders when it comes to fulfilling a duty of care.

The circumstances surrounding the allegations being made cast a shadow over the responsibility of an employer and their obligations to effectively uphold a duty of care. Currently, it doesn’t appear that complaints are being made about Ms. 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.

This may leave business leaders questioning exactly where they stand on such matters. Can an employer control situations and negative experiences that occur outside of the workplace? It may seem unreasonable, for example, to think The X Factor’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.

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 consider how an employee’s work duties affect them as a person, and not just in their professional capacity.

When thinking about duty of care, employers are best placed looking beyond the parameters of working hours and the places of work. Engagement with employees is crucial to fully understanding how work is affecting staff. It provides organisations with the insights and ability to act quickly and can avoid an escalation of issues leading to the possible failure of duty of care.

Training employees about how to deal with risks and creating an open line of communication that allows workers to easily raise any concerns they have, will also help employers in their efforts to prevent the nature of employment from negatively impacting employee health and wellbeing.

If employees are aware of what support is available to them, they will be more inclined to seek help when needed. Similarly, communication of resources will help flush out any perceived inadequacies amongst staff about what’s available to support them. This can enable employers to really think about how suitable their duty of care is and if it’s properly addressing the requirements and concerns of staff.

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 Ms. Waissel.