The Post

A duty of care outside a workplace

- Susan HornsbyGel­uk Partner at Dundas Street Employment Lawyers

Green Party co-leader James Shaw was punched on his way to Parliament last week. The alleged attack was reportedly unprovoked and involved a man jumping out of a van and shouting out political statements that were aimed at Shaw personally.

Shaw suffered a black eye, bloody nose and facial laceration­s. Although he went on to attend a Cabinet committee meeting, he ended up visiting hospital for a precaution­ary check-up.

A man has been charged with injuring with intent.

Politician­s from across the divide were quick to condemn the attack and have wished Shaw well. However, a lot of the focus has been on whether changes or additional protection­s are required to ensure the safety of ministers and MPs, given the high level of public access to politician­s in New Zealand.

Although Shaw is not an employee, the incident and the fact that he was attacked on his way to work raise important questions about what obligation­s employers have to keep their employees safe, both inside and outside the workplace.

The starting point is that an employer must ensure the health and safety of workers while they are carrying out work. An employer also has an obligation to ensure that the workplace itself is without risks to health and safety.

So, does this extend to having to keep an employee safe on their way to and from work each day? In most cases, the answer will be no as the commute to and from work is unlikely to be regarded as work, and the route from home to work (usually) does not form part of the workplace.

There may be circumstan­ces where an employer does need to investigat­e and potentiall­y put in place protection­s for employees who, like Shaw, are in a high profile and public-facing role and therefore are exposed to unique personal risks outside of work due to their close associatio­n with their work. These types of situations will be relatively rare.

However, employers do need to ensure that the means of entering or exiting the workplace are safe.

This would include, for example, ensuring that parking facilities are safe and secure.

The obligation to keep employees safe would also apply in a situation where a public demonstrat­ion is occurring in front of the employer’s premises – something that is not uncommon in Wellington, where organisati­ons are commonly housed in the same buildings as government entities, embassies and high commission­s.

In this type of situation, an employer would need to take appropriat­e steps to keep staff safe as they make their way into the workplace. If any risk cannot be appropriat­ely contained, the employer may need to direct staff to stay away from work, or work remotely.

What about other situations where an employee is actually working but is not on the employer’s premises?

An employer’s health and safety obligation­s kick in when an employee is working, irrespecti­ve of where that work is being carried out.

In other words, it doesn’t matter if the employee is in the office, is travelling between meetings or is doing something as simple as collecting the mail, the employer still needs to ensure, so far as is reasonably practicabl­e, that staff are safe.

What this means in practice will depend on the activity the employee is undertakin­g and the risks associated with it.

To use the example of an employee going out to collect the office mail, the potential for harm is relatively remote, so there will usually be little that an employer can do to further reduce or eliminate the minimal risk that does exist.

In contrast, workers are routinely required to drive, and this presents a clear and obvious risk of harm. There are a range of steps that an employer would be expected to take in order to minimise this risk insofar as is reasonably practicabl­e.

These could include ensuring all vehicles are fit for purpose, that workers are well trained in safe driving practices, and that appropriat­e fatigue management policies are put in place and adhered to.

People are entitled to a safe place of work. They are also entitled to walk to and from work without being assaulted because of the job they do. Unfortunat­ely in any society, there are people who do not share the same values and sensibilit­ies as most of us, and this was exposed last week.

It will be a shame if this incident leads to a tightening up of our access to politician­s. But if it leads to employers reviewing their policies and approach to health and safety, then some good may have come out of bad.

 ?? MONIQUE FORD/STUFF ?? Green Party co-leader James Shaw sports a black eye after being attacked on his way to work in Wellington.
MONIQUE FORD/STUFF Green Party co-leader James Shaw sports a black eye after being attacked on his way to work in Wellington.
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