Employers Statutory Duty of Care

11 Feb 2016

Tipping my hat to the great Sir Harry Lauder, 18 December 2010 was a braw, bricht, moonlicht nicht. At around 8pm Tracey Kennedy (a home carer) called on an elderly lady in Glasgow. The lady was terminally ill and Tracey was providing her with palliative and personal care. There’d been severe wintry conditions for several weeks and the sloping path to the lady’s house was covered with fresh snow on top of ice. It had not been salted. Tracey was wearing flat boots with ridged soles. She slipped, fell and injured her wrist.  As you do, Tracey sued her employer and evidence emerged that the risk of falls was identified in 2005, again in 2010 and her employer was aware of a history of such accidents with possibly serious consequences. Tracey’s case ended up before the Supreme Court which gave judgement this morning. Tracey won.

The statutory elements in the case arise from regulation 3, the Management of Health and Safety at Work Regulations 1999 and regulation 4, the Personal Protective Equipment at Work Regulations 1992. The former requires employers to undertake a suitable and sufficient risk assessment. The latter requires the provision of suitable personal protective equipment to employees exposed to safety risks at work unless the risk is adequately controlled by other means. In a nutshell the Supreme Court found:

  • Tracey was exposed to an obvious known risk;
  • Tracey was not provided with protective equipment and her employer’s advice to wear appropriate footwear was inadequate;
  • Tracey was at work when the accident occurred;
  • the regulations encompass risks arising from the “natural environment” as well as from activities of the job;
  • a proper risk assessment would have identified the risk of Tracey’s falling and the availability of anti-slip attachments for her boots which would have reduced the risk at a modest cost – and which had been used by other employers.

In the context of equipment,  “Suitability” requires it adequately control risk so far as is practicable and a risk will not be “adequately” controlled unless injury is highly unlikely.

As always there’s a degree of fact sensitivity about Tracey’s claim and the Court’s judgement but the implication is that it’s time to review our bad weather policies, risk management skills and insurance cover…my personal risk management is to keep a couple of bags of salt in my garage which Mrs Humphery requires me to spread when snow’s forecast.