This case raises the questions of what is and what is not: 

  1. "work equipment” in terms of the Provision and Use of Work Equipment Regulations 1998; and 
  2. “a workplace” in terms of the Workplace (Health, Safety & Welfare) Regulations 1992

C was employed as a chef by P, who operated a hotel and lodges near Loch Fyne. C initially stayed in a caravan provided by P. A burst water pipe in January 2011 put the caravan out of commission. Consequently, P rented out one of the lodges to C for a reduced price and on the understanding that C would have to move of a customer wanted to stay. When this happened in February 2011, P gave C several days’ notice to move out. 

In the process of removing his belongings from the lodge, C injured his foot on a metal pole that became dislodged when removing his clothing from inside a wardrobe. The pole was not secured safely to the wardrobe, it was not the correct size and had sharp edges. As a result, C raised an action in damages against P for the injuries he sustained. 

At first instance, the Sheriff rejected his arguments, taking the view that the employee, C, was not acting in the course of his employment when the accident happened. He did not “consider that a pole contained within a wardrobe in what is normally a lodge occupied by guests is, in relation to the pursuer, ‘work equipment’.” 

C appealed arguing that: (i) the pole was “work equipment” within the meaning of the Provision and Use of Work Equipment Regulations 1998, although not being used by himself as such, it was used by other members of staff, such as cleaners, as work equipment; and, (ii) when the accident happened, he was ‘at work’ for the purposes of the Workplace (Health, Safety & Welfare) Regulations 1992 because he was under the instruction of his employer to clear out the wardrobe. 

Addressing, firstly, the question of whether the pole was work equipment, P relied on Lord Hoffmann’s speech in Spencer Franks v Kellogg Brown & Root Limited 2008 SC (HL) 159, [2008] UKHL 46, where he said that the starting point is to ask: “What is it for? If it is for use at work, then it is work equipment.” P argued that the wardrobe was for use by lodgers, to allow them to hang clothes and, therefore, did not fall within the 1998 regulations. 

Secondly, regarding the 1992 regulations, P submitted the lodge was not a place of work. It was distinguishable from offshore workers’ situations in Spencer-Franks, where employees were obliged to stay in the accommodation provided by their employer. C, on the other hand, was under no such obligation; he could have chosen to stay in other accommodation. 

P was essentially wearing “two hats” – acting both as employers and owners of the lodge. Similarly, C wore two hats – as an employee and a lodger. When instructed to move, P was acting as the owner of the lodge, and their relationship was governed by the lodging agreement, including the agreement that C would move out if required. 

Decision: 

On appeal (to the Inner House of the Court of Session, Edinburgh), the judge had little difficulty in upholding the Sheriff’s findings for the following reasons. Firstly, the wardrobe was not work equipment because it was not there “for use at work”, but rather, as storage for occupants of the lodge. Even if it were work equipment, something can be “work equipment” when at work, but may not be when used away from work. For example, a company car used for an entirely private journey is not work equipment for that journey. 

Secondly, following from the first point, when C sustained injury, he was not at work and the lodge was not his workplace. There was no evidence to suggest that C was acting in the course of his employment, rather than in the context of his occupancy agreement with P, when instructed to move out of the lodge by P. Accordingly, the lodge was not, at the time of the accident, a workplace for the purpose of the 1992 regulations.