With unpredictable, cold weather at this time of year, employers who require staff to go out on the streets should be aware of the Supreme Court decision issued on 10 February 2016, in the case of Kennedy v Cordia (Services). It is the final twist in the tale about an employer's duty to risk assess adequately to ensure the safety of its employees.
Facts
Tracey Kennedy was a home carer who was visiting the house of an elderly client in December 2010. The street was covered with snow and ice. When walking along a path to the home, she fell and injured her wrist. She was wearing her own boots, with a flat, ridged sole. She 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
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..."
Ms Kennedy appealed the decision to the Supreme Court and they unanimously allowed the appeal.
Reasons
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.
Comment
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 arguably have diluted some protections available to employees. Employers need to risk assess and act prudently. Indeed the warning is as suggested by Lord McEwan at first instance: "safety should be levelled upwards".
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
