Failure to carry out a risk assessment leaves employer liable for injury

It is widely known that employees can pursue injury claims for accidents that occur in the workplace or during the course of their employment if their employers have been negligent or breached their statutory duties.

In the recent Supreme Court case of Kennedy v Cordia (Services) LLP [https://www.bailii.org/uk/cases/UKSC/2016/6.html] UKSC an employer’s insurers were held liable for the injuries sustained by a home carer who had slipped whilst walking on an icy public footpath due to their failure to carry out a suitable risk assessment and provide personal protective equipment.

Miss Kennedy was a home carer in Glasgow employed primarily to visit individuals at home and provide them with personal care. She was visiting an elderly client on 18 December 2010 at approximately 8 pm when her colleague parked the car on a slope allowing her access to a public footpath leading up to the house. There had been several weeks of severe wintry weather prior to that date. The footpath was covered in fresh snow overlying ice and had not been gritted or salted. She was wearing flat boots with a rigid sole and after taking a few steps she slipped and fell to the ground injuring her wrist.

Miss Kennedy’s employer had previously carried out risk assessments and identified the risk of slips or falls as “tolerable.” Their most recent risk assessment did not expressly consider the risk of injury in inclement weather and neither assessment considered the possible provision of personal protective equipment, such as non-slip attachments for footwear. Miss Kennedy relied upon expert evidence from an engineer on health and safety who was critical of the omission from the latest risk assessment of considerations of slips and falls in inclement weather. He was also critical of the categorisation of the risks as “tolerable”.  The case went to trial and the court held the employer had breached the  Management Regulations and the Personal Protective Equipment (“PPE”) at Work Regulations 1992.

The insurers successfully appealed this decision on the basis the court had erred in accepting the expert engineer’s evidence. However, Miss Kennedy then took her case to the UK Supreme Court, who ruled in her favour, deciding that the expert’s evidence was admissible because, whilst he had made statements of opinion on the employer’s duty, an experienced judge was capable of reaching his own decisions on the legal questions that arose.

It was clear from the evidence that Miss Kennedy was exposed to a risk of slips and falls in inclement weather and this risk was identified in an early risk assessment although not specifically addressed in the latest assessment. The risk therefore had to be evaluated and addressed and possible measures to reduce the risk should have been considered. No consideration was given to the possibility of providing individual protective measures other than advising employees to wear appropriate footwear, which was not further explained.  In these circumstances, the employer was in breach of their statutory duty.

By failing to carry out a suitable and sufficient  risk assessment the employer had not considered the possibility of providing personal protective equipment to reduce the risk of slipping on ice and snow to home carers.

Moreover, the employer knew that there had been previous accidents where home carers had slipped on ice and snow.  Therefore, quite apart from their duty to carry out a risk assessment, these circumstances alone were sufficient to require an employer to take reasonable care for the safety of their employees by making enquiries into possible means of reducing that risk.  If this had been done, they would have learnt that non-slip attachments for footwear were available at a modest cost. In the circumstances they were negligent as well as in breach of the regulations.

Miss Kennedy was injured as a result of being exposed to a risk against which she should have been protected by the provision of personal protective equipment.  The Supreme Court held that it was therefore reasonable to infer that the failure to provide such equipment had caused or materially contributed to her accident.

This case highlights the duties imposed on employers to carry out suitable risk assessments and is good news for employees who consider that their employers may not have taken all necessary steps to risk assess to ensure for their safety whilst at work

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