Audit safety of workplace to avoid injuries and lawsuits

Employers have a duty to ensure the safety, health and welfare of their employees. This obligation is not only imposed on the employer under common and torts law, but also the statute.

For starters, the Constitution guarantees every citizen the right to health. Article 43 details economic and social rights and under this every citizen has a right to health.

The Occupational Safety and Health Act of 2007 further details the role of an employer in ensuring that their employees are safe and their health is not put at risk.

I will highlight some of the provisions of this law. The employer has a duty to ensure that all machinery within his premises are in good working condition and do not compromise the safety and health of employees.

Any injury occasioned to an employee through use of a defective machine is actionable.

The employer equally has a duty to ensure that all substances are handled and packaged well to avoid injuring employees.

For example, an employee who is injured because some chemicals were not well packaged can sue his employer.

An employer must give employees adequate information on safety procedures and provide information on what would happen in the event of injuries.

A safety manual is therefore mandatory an the workplace, especially for businesses which deal in manufacturing where the risk of injury is very high.

The employer must also provide an adequate exit from the workplace so that in the event of danger, employees can escape easily.

In terms of compliance, employers must carry out frequent risk assessments and file reports with occupational and health officers. Not many employers do this or are aware of these provisions.

Employers must finally register their workplaces, unless they are exempted by law from so.

Employees too have a duty when it comes to maintenance of safety and health. They must ensure their own safety and that of others at all times.

They also have a duty to comply with safety procedures and manuals given by the employer. They must also use protective clothing and report any risky situations or injuries.

Safety manuals

Kenya has a lot of case law in the area of workplace safety. For example, an employer will be found liable for injuries sustained by employees if he fails to provide safety manuals.

An employer should not allow an untrained person to operate machinery as that could put other workers and staff at risk.

For one to operate any machinery or sensitive equipment one should have been trained and given proper instructions on how to handle a crisis.

An employee cannot make claims against his employer if he is negligent in handling himself and machinery at work in what is known as contributory negligence.

I came across one interesting case where a watchman was attacked by thugs and sustained injuries on his head and other parts.

He sued the employer for damages. The court however found him to have been negligent as he had failed to wear protective clothing which would have shielded him from injuries.

Besides, the court argued that he knew the risk inherent in the job and therefore was awarded very minimal damages.

Employers who do not comply with the rules are fined Sh500,000 besides other courses of action. It is advisable to do an audit of how safe your work place is to prevent law suits.

Mputhia is the founder of C Mputhia Advocates. [email protected]. www.cmputhiadvocates.com