Instead, they must show fault or negligence on the part of the employer. Despite this, however, the regulations are still important for informing the court about the standards expected from employers and the steps that should be taken to ensure all employees enjoy safe working conditions.
One requirement of the regulations is that all employers should perform workplace risk assessments. These are a vital tool in identifying risks and preventing accidents before they happen. Despite the recent changes to the law, courts still expect employers to have carried out appropriate risk assessments and made these available to employees. Failure to produce adequate risk assessments is likely to significantly hamper the ability to defend any workplace personal injury action.
The importance of risk assessments was highlighted in the case of LC v City of Edinburgh Council, a recent Sheriff Court decision in Edinburgh. In this case, a mother was walking with her daughter through a school playground on a particularly stormy day. The wind caused a sign to become dislodged and it struck the lady on the head, causing a nasty injury.
The court found the defender liable for the injury. The court was critical of the defender for failing to implement an inspection regime, which would have been identified through a suitable risk assessment. The Sheriff’s comments set out both the purpose and the importance of risk assessments:
“The requirement to carry out such 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 its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and if so what is the extent of that risk and what can and should be done to minimise or eradicate the risk.”
This passage is important as it highlights that a risk assessment is not simply a ‘tick-box’ exercise, completed because the law expects it, before being filed away. Instead, a risk assessment should properly consider each element of the employee’s job and if hazards are identified, steps should be taken to either eradicate or, if that is not possible, minimise the risk so far as possible. Furthermore, copies of assessments should be available for employees so they too are aware of the risks.
It is of course possible that risks will be identified which can be minimised but not completely eradicated. In such a situation, employers and employees alike have a duty to ensure that appropriate steps are taken to limit the risk of a workplace accident from occurring.
In the recent Court of Session case of McLeish v Lothian NHS Board, a nurse slipped on a wet floor and sustained a significant injury. The system of work required that a cleaner erect a ‘wet floor’ sign to warn people of the risk, something that was not done. The court held that in absence of a sign being put in place, there was no suitable warning to the nurse and the defender was found liable.
In this case, a risk had been identified by the employer prior to the accident – a wet floor – and a means of reducing this risk had been identified – erecting a wet floor sign. Failing to put the sign in place caused the accident.
This shows that the responsibility for health and safety in the workplace is the responsibility of everybody, not just the designated health and safety officer. Staff should review risk assessments and consider what dangers they face and also what dangers their role could pose to third parties. If all employees are alert to potential risks in the workplace, it will result in a safer workplace and reduce the number of personal injury claims the business will face.