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Are Employers Overlooking the Importance of Risk Assessments?

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Calendar February 29, 2016

Although winter is drawing to a close, we all know that the UK can face unexpectedly icy temperatures right up until spring. Employers who require staff to work outdoors, travel or visit outdoor location should be aware of the recent Supreme Court decision in Kennedy v Cordia issued 10 February 2016, as this has had an interesting impact on employer’s obligation to carry out a risk assessment to ensure employee safety.
Kennedy v Cordia

The Supreme Court decision, in this case, concerned a home carer who slipped and fell while visiting an elderly client. Tracey Kennedy was employed by Cordia when in December 2010 she fractured her wrist as a result of slipping on a path covered with snow and ice. She was wearing her own boots at the time of the accident which had a flat rigid sole. Kennedy sued Cordia for damages, citing that they breached their duty of care towards her as an employee. Ms Kennedy’s claim stated that Cordia should have supplied her with boot attachments to provide extra grip, given the weather conditions she had to work in.

The case was originally head in 2013, with the judge ruling that Cordia was to be held liable for her injury. However, in 2014 Cordia appealed the decision on the basis that no employer should be expected to eliminate every danger that may be faced by employees. The judges overturned the decision, stating:

“The relationship of employer and employee is not to be treated as being the equivalent to that of nursery teacher and pupil, or that of parent and child…”
This was not the end of the case, however, as Ms Kennedy subsequently appealed the decision to the Supreme Court, which unanimously allowed her appeal.

The Court determined that the law concerning health and safety regulation requires employers to carry out a suitable risk assessment, but that Cordia had breached their duty to carry out such an assessment and implement preventative measures. Cordia was aware of the inclement weather conditions posed to employees, in particular, Ms Kennedy. Cordia had experienced reports of similar incidents of employees slipping in ice or snow on the way to visit clients, and also knew of the icy weather conditions on the night Ms Kennedy’s accident took place. Also, the icy conditions experienced that evening had persisted for weeks. The Court also highlighted that the anti-slip attachments were available at a small cost to the employer, and had been proven to significantly reduce the risk of slipping by other employers.

What can be learnt from this decision?

This decision is an important indicator of how the Courts will interpret the obligation on employers to carry out a risk assessment and to implement preventative safety measures to improve the safety of employees at work. Employers must ensure they carry out adequate risk assessments including assessing risks which may exist offsite if employees are to travel for work. If you are an employee, and you feel your safety is at risk, you should outline this risk to your employer so that they can remedy the situation. Where they fail to do so, you may have a strong claim for compensation should you be involved in an accident.

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