Understanding charities' duty of care
The concept of duty of care has been a source of much discussion and anxiety amongst charities. What does it mean? How and when does it arise? What are our obligations under it?
It is a poorly understood concept and a failure to address it adequately can give rise to legal, financial and moral consequences, including reputational damage, loss of staff morale, loss of key personnel and loss of funder/stakeholder confidence. In fact, one could argue that how a charity fulfils its duty of care underpins its operational effectiveness.
What is a “duty of care”?
Charities have a moral and legal duty to ensure that everybody who works for them is safe from injury or work-related illness. A duty is also owed to service users, members of the public, contractors on site and any third parties they encounter.
Duty of care was developed by the courts over many years and is a general common law duty on all individuals and organisations to avoid carelessly causing injury to persons. Common law has stated that individuals must take reasonable care of others and this has been confirmed over the years by several important cases, e.g. Donoghue v Stevenson (1932).
Furthermore, various statutes (e.g. Health & Safety at Work Act) have codified case law and introduced new laws backed by fines and potential criminal charges. The duty of care owed is regardless of the size of the organisation, its income or whether it has paid staff.
Duty of care includes:
- A safe place of work with safe means of access to and egress from it.
- Safe systems for doing the work.
- Competent and safety-conscious personnel.
- Appropriate supervision, information, instruction and training.
- Safe appliances, equipment and plant for doing the work.
- Safeguarding staff and clients.
- There is a greater duty of care owed to vulnerable individuals.
To give a practical example, a young volunteer is left unsupervised working with a piece of garden machinery and fails to wear the supplied goggles. If he sustains an eye injury, the charity could be liable as it failed to train or supervise the volunteer in the safe use of the machine. The test that the courts will impose is whether your organisation failed to take reasonable care, i.e. were negligent.
Statutory requirements
All employers have a duty of care towards their employees and must have a Health & Safety policy and arrangements, “suitable and sufficient” risk assessments should be documented if they have more than five employees, and there should be employers' liability insurance with at least a £5m limit of indemnity.
Is a volunteer an employee?
The standard common law defines a worker as an employee if the employer has control over what work must be done and how it is done. When employers can only direct or control the result of the work a worker is typically defined as an independent contractor.
Most employers' liability insurers will treat volunteers as employees. On rare occasions, where the volunteers are considered independent contractors, public liability insurance will usually respond in the event of a claim.
Employees have a duty in respect of their own safety and that of fellow employees. The employer, however, will generally be vicariously liable for any injury to an employee caused by a fellow employee.
If the worst happens
If someone is injured and takes legal action they must establish this vicarious liability on the balance of probabilities that the organisation:
- Owes them a duty of care.
- Has breached its duty of care.
- Their injuries have been caused by the breach.
A higher duty of care exists between employer and employee.
Generally, insurers will become involved following an injury and their ability to defend a claim will depend on a myriad of factors covering areas such as record keeping, statutory compliance and organisational culture.
Addressing duty of care practically
You may already be addressing duty of care as it underpins many of the risks identified in your risk register and practical steps may already be in place. A good starting point is your Health & Safety obligations and questions to ask yourself:
- Are risk assessments suitable and reviewed at least annually?
- Are safe systems of work in place and are they up to date?
- Are staff competent and properly trained with suitable record keeping?
- Do staff have appropriate personal protective equipment (PPE), the use of which is monitored and signed for?
- Are staff properly supervised?
- Are accidents property investigated and documented?
Sensible precautions and proactive risk management can help a charity meet its legal obligations under duty of care.
Covering your reputation
Increasing expectations around a charity’s behaviour and the ever-evolving world of digital and social media, combined with a myriad of stakeholders, are key factors contributing to the vulnerability of a charity’s reputation. A strong crisis management plan, thoughtfully prepared and skilfully executed, can stop a crisis becoming a catastrophe for a charity.
The way that risk is addressed in a charity, both by meeting legal obligations and through implementing risk management in the culture, will lessen the probability and impact of an incident.
It is possible to insure against reputational damage – meeting the public relation costs associated in restoring your reputation and consequential loss in revenue. It can help minimise the impact of an adverse event, however it is rarely considered as an option that can be bought by charities.
Don’t overlook driving
For most of us the riskiest activity we will undertake is driving. If your staff or volunteers are driving for work then the vehicle is also considered a place of work and the same duties will apply. Often this is a blind spot for many charities.
Watching your back
Insurance is the final piece of the jigsaw and, as discussed above, will not cover all the consequences of a breach of duty of care, which are not always financial.
A good insurance broker can help you fulfil your duty of care with services such as claim reviews, Health & Safety audits, duty of care training courses, crisis management, motor fleet management and contract reviews.
Finally, it is important that your broker properly understands your organisation when it comes to arranging insurance to ensure you are appropriately protected and benefit from competitive premiums. Often charities purchase "off the shelf" products, which do not fully protect the charity and can leave uninsured exposures.
The way a charity addresses duty of care is the backbone for its success. Setting aside the financial implications of failing to do so, we are all here to make a difference in the lives of others, and the safety of all involved should be paramount in achieving that difference.
