When does employer duty of care begin and end during a working day

[Bigone]

A couple of my colleagues have been suspended from work over what was stated as a serious health and safety breach, they both park their cars in an adjacent businesses car park, they had to walk over a pedestrian bridge which led to steel gate that my company have decided to lock from the bridge side. They decided climb over a barrier to get accross on to a public right of way on my employers land, they were seen by a security officer who reported them, obviously they had not signed or clocked in so surely this would have been in their own time, they have studied the companies hand book and their contracts of employment and can find nothing that states at what point that the employers duty of care begins and ends, the only thing that is stated in a list of items that are classed as gross misconduct is -quote - "breach of safety rules and/or any action which endangers the health and safety of an employee or any other person whilst at work" surely the term, whilst at work, means during company time, they hadn't actually signed in so were not in the companies time. Views on this would be much appreciated

[Kati]

Re: When does employer duty of care begin and end during a working day

Is it actually a public right of way?? I'm sure there are rules about blocking access to those!

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http://www.environmentlaw.org.uk/rte.asp?id=278

Who do I complain to if the right of way I want to use is blocked? What if it’s blocked deliberately? And what if it’s overgrown?You should complain to your local highways authority, which is the county council or unitary authority where you live. You can find contact details here.
If the path is blocked deliberately it’s a criminal offence under Section 137 of the Highways Act 1980. Offenders can face a fine and criminal record.
If it's overgrown from below it's the highway authority's responsibility. If it's overgrown from the sides it would be the responsibility of the adjoining landowner, but you should still complain to the highways authority.

[Bigone]

Re: When does employer duty of care begin and end during a working day

The public right of way passes at my employers side of the gate and is not blocked. there is debate about whether the bridge leading up to the gate is a right of way but I don't think it is, the footbridge belongs to the other company, the two lads climbed of the bridge onto pipe an over a barrier onto the public right of way on my companies land, the photos show both sides of the gate

[Kati]

Re: When does employer duty of care begin and end during a working day

The public right of way passes at my employers side of the gate and is not blocked. there is debate about whether the bridge leading up to the gate is a right of way but I don't think it is, the footbridge belongs to the other company, the two lads climbed of the bridge onto pipe an over a barrier onto the public right of way on my companies land, the photos show both sides of the gate

can you PM me the details/address ... I know my OH uses a website that shows the proper public rights of way in the UK

[des8]

Re: When does employer duty of care begin and end during a working day

Every Local county council holds a map showing the definitive public rights of way in their area.

Was the barrier they climbed on their employer's land?
Was the pipe on the employer's land?

Was there actually any danger in climbing this barrier eg it prevented a long drop/ was tall/ prevented access to a rail line)?
It looks pretty innocuous

[Bigone]

Re: When does employer duty of care begin and end during a working day

The barrier and I assume the pipe is on the employers land, there was fairly steep slope into the beck below, I suppose it would be possible to sustain injury if you slipped off the pipe, but as stated in the original thread, the question is would the health and safety breach apply when not in the companies time

[des8]

Re: When does employer duty of care begin and end during a working day

Employers have legal responsibilities to ensure a safe & healthy workplace.
Employees have responsibilities for their own and their colleagues health & safety whilst on the workplace.
I don't see that either of those responsibilities is lessened just because the employees were on the premises outside of worktime.
If worktime doesn't commence until they clock on those responsibilities still exist whilst moving from premises' gates to clocking on station

Just my uneducated thoughts!

[Bigone]

Re: When does employer duty of care begin and end during a working day

interesting thought
at what point legally does an employer become responsible for an employees health and safety
is it when arriving at the site when your in your own time, just because you are on their land?
is it when your actually signed in and working for them ?
legally can they discipline you for what you do in your own time, just because you are on their land ?

[des8]

Re: When does employer duty of care begin and end during a working day

I would suggest that as soon as anyone, employee or not, enters the company land, the company have a liability for the incomers health and safety.
A landowner, business or private, has a duty of care to any person on their property. (occupiers liability), although there is also a persons responsibility for their own safety.

If the two concerned in the present scenario were not employees The company would probably have no sanctions they could impose as no damage was caused, and a claim for trespass would not be worthwhile.
However these two were employees, and their employers will not want to let it be seen that workers can enter or leave the premises by means that may be unsafe. To do so will expose the company to an action if an accident occurs.

"whilst at work" could mean "during working time" or Whilst at the workplace"
If the latter (which IMO it probably is) it is covered by Workplace (Health, Safety and Welfare) Regulations 1992.

[Guest]

Re: When does employer duty of care begin and end during a working day

The barrier and I assume the pipe is on the employers land, there was fairly steep slope into the beck below, I suppose it would be possible to sustain injury if you slipped off the pipe, but as stated in the original thread, the question is would the health and safety breach apply when not in the companies time

How can you expect a company to be responsible for health & safety breaches not in their time?

[Bigone]

Re: When does employer duty of care begin and end during a working day

I understand your point des8 and thanks for your views, but the two men were in their own time, so they were actually no different to any other member of the public when jumping onto the public right of way, surely the employer has no control over them in their own time, unless it is stated somewhere in their employment terms or the company rules handbook, I'm sure that if the one of them had slipped and hurt themselves whilst following the correct route, the company would have denied all responsibility. Also the term "whilst at work" means what it states, or shouldn't it have "stated whilst on the company property", I would be interested to know what an employment lawyers opinion would be, because the two are facing possible dismissal

[Kati]

Re: When does employer duty of care begin and end during a working day

[MENTION=51026]Ula[/MENTION] maybe??

morning [MENTION=108081]Bigone[/MENTION] ... I got your PM with he location, just double checking everything now (re. footpaths) xx

[ULA]

Re: When does employer duty of care begin and end during a working day

From the thread it seems you have [MENTION=49370]Kati[/MENTION] looking into public right of way issue etc so I am just going to deal with health & safety (h&s) from an employers perspective.

An employer has a responsibility to ensure the health and safety of its staff whilst they are on company premises regardless of whether it is during their normal working day. As [MENTION=39710]des8[/MENTION] says the employer still has the same responsibility for someone who enters the "premises' gates to go to a clocking on station" as once they have clocked in. The responsibility starts from when they set foot on company premises to the time they leave the premises regardless of whether that is during their contractual working hours.

[Bigone]

Re: When does employer duty of care begin and end during a working day

Thank you Ula, I will inform my colleagues about what I've learnt from this post, obviously they are taking advice from the trade union area rep, just wondered where they stood with this matter

[Bigone]

Re: When does employer duty of care begin and end during a working day

Thank you Kati, your help is appreciated with this, as some employees from the other company are unhappy about the gate being locked by my employer, because it means they have walk down the road way instead which is unlit