Caring for your carers

The Supreme Court has handed down an important decision in the case of the duties employers owe to employees working outside in areas over which they have no control. Steven Conway looks at the impact of the ruling.

The Supreme Court has handed down an important decision in the case of the duties employers owe to employees working outside in areas over which they have no control. Steven Conway looks at the impact of the ruling.

In Kennedy v Cordia (Services) LLP [2016] UKSC 6 Miss Kennedy was a home carer employed by Cordia, a company owned by Glasgow City Council to provide home care services on its behalf.

During December 2010 there had been severe wintry conditions for weeks, with snow and ice. As Miss Kennedy was walking along a public footpath to visit an elderly lady who was terminally ill, she slipped on snow and ice and fell, fracturing her wrist.

The lower courts

It was found that the claimant’s employers were in breach of regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 by failing to carry out a suitable and sufficient risk assessment, and had breached regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 by failing to provide the claimant with suitable personal protective equipment. That decision was reversed on appeal, which led to the present appeal to the Supreme Court.

In the Supreme Court

The Supreme Court found that the claimant’s employers were aware of the risk of injury through employees falling on snow and ice as on average there was four similar incidents each year, though there had actually been 16 similar incidents during 2010.

The council had carried out a risk assessment in 2005 which looked at the risks to employees travelling to and from work locations which looked at the risks from slips and falls through inclement weather. The risk had been assessed as “tolerable” and control measures were put in place to provide a hazard awareness booklet and to advise employees to wear appropriate footwear, with the decision as to what was appropriate being left to the employee. A further assessment was carried out by Cordia in 2010 but this did not look at the risk of falls from inclement weather. Neither assessment considered the provision of personal protective equipment, such as non-slip attachments for footwear.

Expert witness evidence

The claimant relied upon evidence from a “health and safety” expert which suggested that non-slip attachment were available and at modest cost and that there had been a number of studies which demonstrated that these could reduce falls by up to 90%. The HSE had also produced guidance advising on the availability of non-slip footwear to reduce the risks to workers in snow and ice and also recommended considering what provision other similar organisations made.

The Supreme Court considered the usefulness of “health and safety” expert evidence in cases such as this, primarily in response to the challenge by the defendant that the claimant’s expert evidence was neither admissible, nor “expert” and they have provided useful guidance as to the admissibility of expert evidence, the responsibility of a party’s legal team to ensure that experts remain within their remit, how the courts are to police the performance of an expert’s duties and the need for economy in litigation.

The decision

The Supreme Court found that there had been a breach of regulation 3(1) of the Management of Health and Safety At Work Regulations 1999 in that the defendant had failed to make a suitable and sufficient assessment of the risks to the health and safety that employees are exposed to whilst at work as no consideration had been given to the possibility of using individual protective measures, such as non-slip attachments.

In the light of the concession that the defendant had not considered the provision of any personal protective equipment, when such equipment was available and at low cost which would have reduced the risk of falls on snow and ice they also found that there was a breach of regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992.

In an important ruling on the applicability of the Personal Protective Equipment at Work Regulations the Court also found that the claimant was “at work” for the purposes of regulation 4 which requires employers to ensure that suitable PPE is provided to employees who may be exposed to risks to their health and safety “at work”, and as such employees who are required to travel between different locations will still be at work and afforded protection under the regulations.

Finally, in considering the common law position their Lordships noted that it has become generally recognised that a reasonably prudent employer will conduct risk assessments in connection with its operations so that it can take suitable precautions to avoid injury to its employees. The requirement to carry out an assessment, whether statutory or not forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of employees. That is because the whole point of a risk assessment is to identify the risks to safety, the extent of that risk, and what can and should be done to minimise or eradicate that risk. The duty to carry out a risk assessment comes before determining what precautions a reasonable employer would have to take in order to fulfil his common law duty of care.

In the present case had a proper risk assessment been carried out, the defendant would have learned that non-slip attachments were available, at modest cost which had been found to have been effective in reducing the risk and that in failing to provide such attachments, the defendant was also negligent.

The implications

At its narrowest the decision has implications for local authorities and employers whose employees will be exposed to a risk of falling on snow or ice in that they will need to review their existing risk assessments and consider whether they now need to provide non-slip attachments.

The decision also reinforces the need for employers to ensure that risk assessments are properly considered and carried out. Risk assessments are often seen as a “tick-box” exercise but the decisions we are seeing from the higher courts all stress the need for risk assessments to be suitable and sufficient as the first line of protection of employees at work.

Finally, the decision provides some insight as to the views of the Supreme Court and the approach they are likely to take following the introduction of the Enterprise and Regulatory Reform Act 2013, in particular the creation of a duty to carry out a risk assessment at common law and the need for employers to give a wider consideration as to the risks their employees are exposed to.

This article was first written for, and featured on, LocalGovernmentLawyer.

This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.