An employee who was working as a carer went to the home of a terminally ill person in order to provide personal care. The weather was freezing and snow was falling as the employee and her colleague walked down a path to the person's home after parking their car. At this point the employee lost her footing, fell and injured her wrist.
When the case was first heard in the Court of Session, the judge (the Lord Ordinary) held that the employer was liable to make reparation to the employee because they were in breach of their duties under the Management of Health and Safety at Work Regulations 1999 (the 1999 Regulations), the Personal Protective Equipment at Work Regulations 1992 (the 1992 Regulations) and common law. This was because they had failed to give their employee attachments (described as "add-ons") to her footwear to give her better grip in icy or snowy conditions or instruct her how to use these and ensure that she used them. When she fell she had been wearing her own boots, with no attachments to provide traction.
The employer appealed the decision
Breach of Duty
The 1999 Regulations, set out a requirement for employers to carry out a suitable and safe assessment of risks (Regulation 3). However this by itself does not require the taking of any safety precaution. A breach of the duty in relation to risk assessments could not be said to be the direct cause of the employee's injury. It was therefore incorrect of the Lord Ordinary to have found the employer liable for the employee's injury as a result of the 1999 Regulations.
The 1992 Regulations impose a duty on employers to provide suitable personal protective equipment ("PPE") to employees who may be exposed to a risk at work and to ensure that any equipment provided is actually used. Lord Brodie was not satisfied that this duty had been breached. The 1992 Regulations applied to risks that the worker is exposed to specifically from their work. The risk which the employee was exposed to here (walking on icy pavements) was not materially different from that to which any member of the public was exposed. Because the risk was not therefore something which arose specifically from the employee's work the requirement to provide PPE and ensure this was used did not apply. Even if this was not correct, the employee had been given training which included discussion about how to cope with snow and ice. Further, it could not be said on the evidence that wearing the attachments would have made any material difference.
The Inner House was also not satisfied that the employer was in breach of any common law duty. It had to be fair, just and reasonable to impose a duty of care of the type suggested.
From a practical perspective the Inner House noted that the duty envisaged by the Lord Ordinary would necessitate that employers monitor the weather with a view to determining what footwear would be most suitable and then ensure that it was worn by employees who would be likely at any particular time to be scattered throughout the city. How this could be done was not obvious.
The court held even if there had been any breaches of statutory and common law duties, it could not be said they caused the injury. The employer's appeal were therefore successful.
So what can be taken from this case? It could be said that the Inner House has adopted a more pragmatic approach when considering an employer's liability. Employers with employees who are required to travel around to carry out their duties may well breathe a sigh of relief that a duty to the extent set out by the Lord Ordinary's decision has now been considered not to be applicable. Of course it should be remembered that the courts will consider each case before them on the basis of its individual facts and circumstances to determine the extent of duties which an employer has.