Safety First

Looking at the employer’s duty to adequately risk assess in order to ensure the safety of employees.

With the unpredictable weather that we have to endure each winter, employers who require their staff to go outside onto the streets as part of their job need to be aware of a decision by the Supreme Court earlier this month. The case of Kennedy v Cordia (Services) has a twist in the tale about an employer’s duty to adequately risk assess in order to ensure the safety of its employees.

Facts about the case
Tracey Kennedy was a home carer who was visiting the house of an elderly client in the winter of 2010. The street was covered with snow and ice and when walking along a path to the home she fell and injured her wrist. Ms Kennedy was wearing her own boots, with a flat, ridged sole and sued her employer for damages for breach of duty, as they had not provided her with crampon style attachments to wear with her boots which would have provided extra grip.

Decisions made
The case was originally heard in 2013, and the judge at first instance ruled that Cordia were liable for her injury. Cordia appealed and in 2014 the appeal judges overturned the earlier decision, they took the view that no employer was required to eliminate every danger faced by employees:

“The relationship of employer and employee is not to be treated as being the equivalent to that of nursery teacher and pupil, or that of parent and child…”

Tracey Kennedy appealed the decision to the Supreme Court and they unanimously allowed the appeal.

Reasons given by the Supreme Court
The relevant Health and Safety regulations require employers to carry out a suitable and sufficient risk assessment and this had been breached. Cordia knew of the risk that their employees might slip and fall on snow and ice when travelling to and from their client’s houses in winter, due to reports of similar incidents in previous years. Cordia also knew of the icy conditions on the night of the incident as those conditions had persisted for weeks.

The anti-slip attachments were available at a modest cost and had been found to be effective by other employers in reducing the risk. The judges inferred that the failure to provide the crampons caused or materially contributed to the accident.

This is an important decision in the approach to employers’ liability in the face of recent changes to health and safety law and public policy, which have arguably diluted some protections available to employees.

However, employers definitely need to risk assess and act prudently, indeed the warning as suggested by Lord McEwan in the first instance is that: “safety should be levelled upwards”.

Dundee Employment Law
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Kirkton of Auchterhouse
By Dundee
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