Seasonal Weather and Everyday Hazards
As winter arrives and the possibility of snow and ice appears on the horizon, questions are often asked about how far an employer is required to go in order to protect their employees and others against everyday hazards. In this month’s article we will explore the implications of an important ruling relating specifically to the everyday risks of snow and ice.
In a recent Scottish case (Kennedy v Cordia (Services) LLP), the Inner House of the Court of Session was asked to consider whether an employer would be liable for an employee, employed as a home carer, who slipped and fractured her wrist on an icy path whilst making a home visit. The employee argued that her employer had failed to assess the risk of an employee slipping in bad weather and should have provided her with appropriate footwear “add-ons” to improve grip. The Inner House overturned the original verdict and found in favour of the employer.
The Kennedy ruling sheds light on a very relevant question for this time of year: how far is an employer expected to go to protect employees from everyday hazards which could arise just as frequently outside of
work? In Kennedy the court directly considered that question and gave clear guidance on the actions to take when presented with this scenario.
The Test of Risk
The court found that employers would need to consider whether an “everyday risk” is more likely to occur or the level of harm from that risk is increased due to the employee’s work. The court gave the example of a security guard who is required to carry large amounts of cash in public places. The risk of an attack or robbery is an everyday risk, but the risk is significantly greater when a person is obviously carrying large amounts of money. The court contrasted this with the risk of falling on an icy pavement, which could happen to anyone regardless of their reason for using the pavement.
Assessing Everyday Risks
For you as an employer, the key question is whether the risk is controlled by your actions or whether it is a risk that we as adults could face at any time.
However, this ruling is not a green light for employers to rely wholly on the common sense of their employees. Very few everyday risks are not affected by job demands. Even where the ruling does apply, following the letter of the ruling will only bring you up to the level of minimum legal compliance – it will not keep your employees safe, nor will it take much change to make you non-compliant.
When dealing with everyday risks and their impact on your employees, the primary question you should ask yourself is: “Have I done all that is reasonable?”
The way to ensure the safety of your employees and legal compliance to the best of your ability is to follow that principle. The mindset of “Have I done all that is strictly necessary?” is not an appropriate mindset, even though this ruling facilitates it. The ruling is against impractical and unworkable health and safety duties, and is not a licence to ignore obvious risks.
The secondary question you should ask is: “How have I changed the situation?” You will always be responsible for your actions as an employer and the actions of your employees, and so you must consider the consequences of your efforts to reduce the risk. If you cannot act properly to reduce the risk, or if your efforts make the situation worse, then you will be held responsible if those actions lead to an incident.
Icy Weather
To try and apply the ruling to a common example, let us consider a scenario where there is snow covering your staff car park. Your employees will still need to use your car park so what should you do? You could have employees clear the snow, but if you don’t have enough grit or salt to cover the car park and remove any ice then removing the snow will only expose the ice beneath and make the problem worse. That in turn would make you liable, as it is your efforts that are responsible for the ice being a risk to your employees – you have increased the level of risk. This is a common concern in larger car parks, where there are myriad different routes to take from parked cars to the entrance to your premises. It is quite likely that you will not be able to clear all possible routes, but that does not mean that you should do nothing.
If you do clear the snow and ice appropriately, what should you do when the temperature drops again? Clearly it would not be reasonable for an employee to be kept standing by at all times with grit or salt ready to clear any fresh patches of ice as soon as they appear. That does not mean you will definitely be liable if an employee slips in between checks on the state of the car park. Also if the temperature drops low enough, it may not be possible to clear the ice at all. That is where the “everyday risks” ruling starts to come into play, as it would not be practicable for you to remove the hazard. Be aware though that your efforts to clear the ice may make your employees think that you have been successful, and they may not take their usual precautions as a result. You should be clear and prompt in informing your employees of your inability to remove ice from the car park if that is the case. That ties into the basic hierarchy of risk control – if you cannot eliminate the risk, you must try to reduce it.
Whilst you could try to claim the strict benefit of this ruling and not attempt to make any improvement to the conditions, and simply let nature take its course, that will not spare you from the lost working days, loss of morale and other costs if your employees are injured. Minimum legal compliance is just that – a minimum. It is not an ideal.