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When at work, mind how you go!

The law in relation to employer’s liability and the extent to which an employer can be held responsible for injuries suffered by an employee in the course of their employment has changed notably as a result of the introduction of the Enterprise and Regulatory Reform Act 2013. Prior to the Act it used to be that if an employee was injured during their working day, and their employer was in breach of regulations which had then led to the injury, such as those surrounding personal protective equipment or manual handling, then employee could rely upon the breach to prove their case. They did not need to prove that their employer had also been negligent in some way. Civil liability therefore became almost automatic. The Act changed this and now an employee has to show that their employer has somehow been negligent. This has meant that lawyers acting for injured employees have had to rethink how to approach each and every new case. 

Undoubtedly, this makes pursuing claims on behalf of those who’ve been injured at work, slightly more challenging than it used to be, so any indication as to how the Courts may receive and deal with claims of this nature is welcome, particularly as there has as yet been no real guidance as to how the Courts may account for the Act. This is where the Kennedy case below, perhaps this gives a useful insight into the future.

Perhaps to some the decision reached by the Supreme Court in Kennedy vs Cordia (Services) LLP [2016] SC 6 was obvious and the case an unspectacular one on the facts but it clarifies two important points. The Pursuer (for this case started life in Scotland) was employed by the Defender, Cordia as a home carer. Her work involved visiting various clients in their homes. On a cold December evening in 2010 Ms Kennedy was between clients when, as she walked up the path towards her next client’s door, she slipped on ice and snow underfoot, causing her to fall and break her wrist. She was wearing flat ‘sensible’ boots at the time. She pursued her employer for damages as a result of this incident. The question was what could her employer have done to either reduce the risk of the accident happening or preventing it altogether. Ms Kennedy was successful at first instance however the decision was appealed to the Court of Session which reversed the decision and then to the Supreme Court following appeal by Ms Kennedy. The reason for the appeal was that Cordia argued they had not been in breach of their statutory duties nor negligent in their duty of care to Ms Kennedy as an employee. I would say here that the accident itself took place before the Enterprise Act came into force but the principles from this case are though very relevant in identifying how the judiciary might look at a post-Act case.

The first important point that came out of the judgment is perhaps an obvious one but nonetheless should be recognised. Even though Ms Kennedy was ‘between clients’ when the accident occurred, she was still at work and therefore the Personal Protective Equipment at Work Regulations 1992 applied to her, despite the fact that she was not in the process of caring for one of her clients at the time.

However the second feature of this case was how the five judges came to a unanimous decision to allow the appeal. Although Cordia had advised its employees, including Ms Kennedy, to take care in bad weather, this did not amount to a proper assessment of the risks that she might face whilst going about her job. They had failed to carry out a detailed risk assessment as to the risks posed to employees by inclement weather, a risk which the judges found was an obvious and foreseeable one. In particular the assessment had given no consideration to what equipment might be provided to prevent employees from sipping in snowy and icy conditions. Expert evidence had been provided in the court of first instance regarding the availability of various inexpensive footwear attachments designed to be used in such weather that would provide extra grip. The Supreme Court found that as no consideration had been given to personal protective equipment, Cordia was in breach of its regulatory duty set out in the Personal Protective Equipment at Work Regulations 1992 and were liable accordingly. Again this is perhaps unsurprising, bearing in mind this case was not subject to the provisions of the Enterprise Act.

What followed though was a consideration by the Court of whether there had also been a breach of the employer’s common law duty of care (in other words whether they had been negligent) in the context of the regulations. The Court said that a reasonably prudent employer should have recognised the risk of injury posed to its employees of snowy and icy weather. The employer should have carried out a proper risk assessment to work out what they should do to meet their duty of care. Had they done so then they would have most likely concluded that there was readily available equipment that would probably have prevented the happening of this accident altogether. It was therefore negligent for the employer not to consider and provide these footwear attachments.

It would seem therefore that the Supreme Court used the regulations as a starting point for determining the extent of an employer’s duty of care. This judgment is great news in that it allows Claimants and their lawyers to at least know what is and is not likely to constitute negligence now the regulations cannot be relied upon in themselves.

Despite the challenges that the Enterprise and Regulatory Reform Act may now pose claimants, my colleagues and I are committed to getting the justice our clients deserve, should they have suffered an injury in the work environment. If you’ve been injured whilst at work, you shouldn’t hesitate to get in touch with us to find out what we can do for you. You can call us on 0800 054 6570 or email me direct; alistair.ward@jmw.co.uk

Those interested enough to see the Supreme Court judgment for themselves can go to https://www.supremecourt.uk/cases/uksc-2014-0247.html

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