It is a common misconception that, if an employee is contracted to work away from your premises, your duty for maintaining that person’s welfare is discharged.
Tom Lomas, associate at Hill Dickinson, discusses his recent trial success; a case which also serves as a cautionary reminder that it is regularly argued by claimants that an employer’s liability extends to a third party location.
The claimant was a caretaker employed by an NHS Trust, whose contractual duties involved working at a local GP surgery. On 28 January 2012, he was cleaning the external windows of the public entrance to the surgery and carrying a set of stepladders. As he made his way back to the staff entrance at the rear of the building, he slipped and fell. He suffered a head injury in the form of an abrasion to his scalp which took two weeks to heal.
The claimant brought a claim and alleged that the trust was negligent in:
- allowing the ground outside the GP surgery to be in an unsafe condition;
- failing to provide gritting services; and
- failing to instruct the claimant with regards to the procedures in place when gritting.
Breaches of the Workplace (Health Safety & Welfare) Regulations 1992 were also pleaded.
Hill Dickinson were instructed to act for the defendant and served a defence strongly denying liability on the basis that the trust had provided extensive training to the claimant in relation to dealing with adverse weather; so he should have been well aware of the protocol in place in the event of snow and ice.
Further, given that the claimant was responsible for gritting, it was the trust’s case that the claimant failed to discharge the very duties he was employed to undertake.
Supportive witness evidence was obtained from the staff who trained the claimant. Not only were the witnesses able to confirm that the claimant had received a thorough induction, together with detailed instructions on how to deal with adverse weather conditions; they were able to produce extensive documentation relating to the claimant’s training.
A common sense decision
The case was heard on 14 January 2015 at Wigan County Court before District Judge Mornington, who dismissed the claim. The claimant sought to deny that he had been trained, notwithstanding having signed the induction document confirming otherwise.
We are in the process of recovering our costs.
Top tips for claims managers
To give your organisation the best chance of avoiding (and also successfully defending) these types of cases we would recommend:
- Ensuring those with responsibility for health and safety place equal importance on the welfare of staff when working both on and off trust premises.
- Provide all employees with a thorough and documented health and safety induction before they start.
- Take the time to ensure that employees are well trained in all duties they are expected to undertake.
- Ensure detailed written documentation exists, including risk assessments and instructions for the tasks that an employee will be expected to undertake. It is important to consider whether there are any specific requirements for the location in question.
- Consider negotiating indemnity agreements in respect of your liability for incidents that occur at third party premises.