There are several laws and legal regimes governing workplace health and safety in Trinidad and Tobago. It is important for employers to understand the full scope of their duties and potential liabilities under each of these regimes, as they are not mutually exclusive and often operate concurrently and in parallel with each other.
In this Article, we will provide a basic primer on the different laws and legal regimes that employers should be aware of.
Under the Workmen’s Compensation Act, an employer is liable to pay compensation to any workmen who are injured during the course of their employment.
The purpose of Workmen’s Compensation is to compensate the injured employee for his inability to work, and by extension earn income. The value of the Workmen’s Compensation payment is calculated using a prescribed formula based on the employee’s earnings and a medical assessment of his disability.
Workmen’s Compensation claims are typically covered by insurance, which is compulsory under the Act. However, it is important to note that Workmen’s Compensation only compensates an employee for lost earnings up to a prescribed amount. It does not prevent an employee from claiming under any of the other legal regimes governing workplace health and safety, where they apply.
The Occupational Safety and Health Act:
The Occupational Safety and Health Act sets out a legislative framework governing workplace health and safety.
Section 6 of the Act imposes a general statutory duty on every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all its employees.
In addition to this general duty, the Act also imposes more specific duties on employers.
One of the most notable of these duties concerns the preparation of annual risk assessments. Section 13A of the Act requires employers to make a suitable and sufficient annual assessment of the risks that its employees and others might be exposed to whilst at work, and to identify the measures that it should put in place to ensure workplace health and safety in the context of these risks.
Employers also have an obligation to review and update this risk assessment where there is reason to believe that it is no longer valid or where there has been a significant change in the matters to which it relates. Notably, this duty could arise during the course of the ongoing Covid-19 pandemic, as employers are required to adjust their working arrangements to meet the evolving trajectory of the pandemic and the government’s response to same.
An employer’s potential liability under the Act is twofold. The Act itself imposes penal sanctions and penalties for breaches of the Act, and the employee may also bring civil proceedings against the employer for breach of statutory duty.
Under the penal regime established under the Act, each breach is punishable by a maximum fine of TT$20,000.00 while breaches resulting in death, critical injury or occupational disease are punishable by an additional fine of TT$100,000.00 or an amount equivalent to 3 years’ pay of the deceased or injured person.
Notably, this fine is without prejudice to any other liability or cause of action and does not prevent an employee from claiming under any of the other legal regimes governing workplace health and safety, where they apply.
Common Law Negligence/Employer’s Liability:
At common law, employers have a duty to take reasonable care for the safety of their employees during the course of their employment, including a duty to provide competent staff, proper plant and equipment, a safe place of work and a safe system of work. The employer’s duty is not an absolute one to prevent any and all injury to the employee. Rather, the standard of care required of an employer is to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation.
Where an employer breaches this duty and an employee suffers injury, loss and/or damage as a result, the employee is entitled to claim against the employer for monetary damages, including payment for pain and suffering, loss of amenity, loss of past and future earnings and the cost of past and future medical and other expenses.
Common law claims are often covered by Employer’s Liability insurance. However, it is advisable for all employers to ensure that they understand the nature and scope of their insurance coverage, and any reporting and other requirements that they may have. It is not uncommon for employers to confuse Workmen’s Compensation and Employer’s Liability claims. While there is some overlap, the employer’s potential liability under the latter is much greater.
In addition to the above, employers also have duties:
- To employees with disabilities, under the Equal Opportunities Act.
- To employees recovering from injuries, or employees that may be medically unfit to work, under the principles of good industrial relations practice and the Industrial Court regime.
- To persons who are not their employees, under the common law principles of occupiers’ liability.
Additionally, it is important to note that many of the duties set out above may apply, not only to employees defined as such under the terms of an employment contract, but also to persons who may be engaged through agencies or subcontractors. This will depend on the specific circumstances of each individual case.
There are several laws and legal regimes governing workplace health and safety in Trinidad and Tobago, some of which overlap in complex and nuanced ways and which can be difficult to navigate. Now, more than ever, it is advisable for employers to have at least a basic understanding of the nature and differences between these regimes, and the full scope of their duties and potential liabilities.