Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
She claimed for damages against her employer citing a breach of the employer’s statutory duty (with reference to the Personal Protective Equipment at Work Regulations 1992 and the Management of Health and Safety at Work Regulations 1999) and alleged that Cordia had failed to carry out a suitable and sufficient risk assessment, or to provide adequate footwear to mitigate the risk of a fall. She argued that a thorough risk assessment would have alerted Cordia to this risk and the fact that protective equipment was available.
The Supreme Court found Cordia liable for her injury on the basis that they did not provide her with protective footwear. In doing so, they relied upon expert evidence of a health and safety expert. How far therefore, is an employer required to go in order to protect employees against everyday hazards or risks?
The expert evidence in this case was delivered by a skilled health and safety expert. His opinion on what Cordia should have done to comply with health and safety regulations appeared to be inadmissible at first sight. However, the Judge considered his opinion whether deciding whether Cordia had suitably evaluated the risk and identified adequate safety measures. The Court concluded that the purpose of a risk assessment is to identify whether there is any risk to safety and, if so, the extent of that risk and what can be done to eradicate it. This is the first step in determining what precautions a reasonable employer would take in order to fulfil its duty to protect the health and safety of employees. The Judge concluded that in failing to enquire into the possible means of reducing the risk of slipping on ice, which Cordia knew was a risk, they had acted negligently.
The implications of this case mean that where an employer is (or ought to have been) aware of hazardous working conditions, but fails to adopt adequate control measures, workplace claims are more likely to succeed. Assessment and prevention of risk are therefore fundamental principles. Employers are encouraged to correctly identify and appropriately grade all risks encountered by employees during their work duties and implement adequate control measures. Employers most affected by this decision are those with staff who do not work at their employer’s property but outdoors or elsewhere. Due consideration should now be given to where current risk assessments may require updating. Whilst this will mean investment of time and budget, it can help to prevent incidents and claims in the future.
For more information
Please contact Kate Watkins for more information or advice on employment law.
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