Working with challenging patients in the care sector can raise potentially tricky issues regarding the obligations of both the employer and its employees. Many obligations are “implied” into the contract of employment.
Duty of Care
As a starting point, all employers owe their employees a duty of care. As a result, an employer must take reasonable steps to provide a safe workplace and a safe system of work. The obligation on the employer is there to ‘provide and monitor, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by the employees of their contractual duties’. Challenging patients in care homes may demonstrate a wide variety of both physical and behavioural problems which care staff must deal with on a daily basis, and so employers must ensure the environment is safe for its employees, and that they are equipped to deal with these issues.
Employers must therefore carry out both general (care home-wide), and specific (patient or task specific), risk assessments. These assessments will identify potential issues and the reasonable steps which should be put in place to protect the health and safety of the employee. It is, however, important to note that an employer does not have to cater for every single possible eventuality that could occur with patients. Rather, they should identify risks and take reasonable steps to prevent these occurring. What is reasonable will depend on a variety of factors, including budget, staff available, the qualification levels of staff, and the likelihood of a risk occurring. Employers are not expected to cater for every eventuality if the risk is minimal.
Risk assessments should identify areas of training that an employer may need to provide its employees. This will ensure the employees are equipped with the correct skills and equipment for the risks they face. The Health and Safety Executive guidance for Managing Health and Safety in Care Homes specifies a methodology of “Plan, Do, Check and Act” which guides businesses to provide a balance between health and safety risks for staff, and the needs and requirements of patients.
The duties towards health and safety do not, however, solely rest with the employer. Employees are under implied duties to obey lawful and reasonable orders, and to exercise reasonable care and skill in their role.
Employees must therefore act within the policies, procedures and training they have received by the employer, as these have been put in place to protect both employees and patients. If they fail to do so, it may lead to disciplinary action being taken against them. A further consequence is that an employee or patient may not be covered by an employer’s insurance policies in the event of an accident taking place.
Records and Reporting
Records should be kept of all risk assessments and training that is completed by staff. This includes general qualifications they may hold. This will act as evidence that the employer has complied with its health and safety obligations.
Care homes have a duty to record and report specific incidents under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013. Near misses, incidents and accidents should be reported by staff, and recorded and investigated by the care home. The investigation should be full and carried out with the aim of understanding the root causes of the incident to prevent it from occurring again. Resulting action may include revising risk assessments and training.
If an employee has been injured, the risk assessments and training provided to an employee will be crucial. The investigation will identify whether the correct risks and prevention strategies were identified by the employer, as well as identifying whether or not the employee acted reasonably and followed any relevant policies/training.
An employer should consider whether they have an insurance policy which may cover any sick leave / compensation for an employee. If the injury results in long term sickness, then it may be appropriate for an employer to send the employee to occupational health in order to receive advice on any reasonable adjustments that could be made to their role to facilitate their return to work.
Tessa Robinson is an experienced employment law solicitor with leading South East law firm Furley Page. For more information about the Furley Page’s employment law services please contact Tessa Robinson email@example.com / 01634 828277 or visit