“The law does not impose on an employer a generalised duty to ensure or take care for the safety of a person who happens to be his employee wherever or however that person meets risks in his or her daily life.” (Lord Clarke  CSHI 76, at 43) That was the resounding message in the Inner House of the Court of Session when considering the appeal in Tracey Kennedy v Cordia (Services) LLP  CSHI 76.
Tracy Kennedy (K), a home carer, raised an action for damages against her employer, Cordia (Services) LLP (C), for injuries she sustained when she fell on an icy path during the course of her employment. K argued that C breached: (i) the Management of Health and Safety at Work Regulations 1999; (ii) the Personal Protective Equipment at Work Regulations 1992; and, (iii) their common law duty of care. At first instance, the Lord Ordinary accepted the pursuer’s arguments, holding that C breached its duties. However, the Inner House rejected the Lord Ordinary’s opinion, and provided a more common sense approach to interpreting employer’s duties both under the above named regulations and at common law.
Firstly, in considering regulation 3 of the Management of Health and Safety at Work Regulations 1999, Lord Brodie clarified that to discharge the duty to carry out a suitable and sufficient risk assessment imposed by this regulation “does not require the taking of any safety precaution” (paragraph 19). In other words, regulation 3 is discharged provided employers have carried out sufficient and suitable risk assessments to identify safety measures to be taken. The taking of safety measures, in itself, is not mandated by this regulation, although it may be required by other legislation.
In this case, carrying out two risk assessments which included assessment of risk of home carers slipping on snow and ice on public streets while in the course of their employment was held, by the Inner House, to sufficiently discharge the employer’s duty under regulation 3.
Secondly, regulations 4 and 10 of the Personal Protective Equipment at Work Regulations 1992, which requires employers to provide personal protective equipment to employees who are exposed to health and safety risks “while at work”, was considered. Lord Brodie drew a distinction between the health and safety risks that employees face as part of their employment, and risks which, although faced during employment, are shared with the public at large. He emphasised that the 1992 Regulations are designed to target the “worker at work and the risks to which that worker is exposed which arise specifically from that work” (paragraph 23). He went onto explain, firstly, that unless the nature of the work materially increases the level of risk to which other members of the public are equally exposed, it will not be regarded as “a risk at work”. Applying this to the facts, he concluded that the risk posed by the icy public paths was not materially increased by the nature of K’s employment – it was not dissimilar to the risk faced by the public at large navigating the streets of Glasgow that day. Second, had it been “a risk at work”, the next question would be if it was “adequately controlled” by the employer. Given the training provided by C to its employees, it was held that this condition would have also been satisfied.
Thirdly, the Inner House rejected the notion that the employer owned a common law duty of care. It was thought that adults in Scotland can be expected to have experience of negotiating snow and ice in urban environment and in choosing appropriate footwear for those purposes. As such, it was thought that in some cases, employees are better placed to makes choices regarding their health and safety. Consequently, employers are sometimes entitled to rely on their employee’s common sense and ability as normal adults to wear what they would see as appropriate footwear in slippery conditions.
In conclusion, the law of employers' liability comes into play where risks of injury arise from the performance and nature of the tasks which the employee is instructed to perform on behalf of its employer - not in relation to risks produced by other independent factors and forces – albeit, on occasions, risks may be encountered, for example, where the employee is on his way to, from and between places of work. It appears that, in relation to some matters, care for health and safety is best left in the hands of the individual adult concerned.
Accordingly, this clarified that the Regulations are “designed to deal with risks which arise in the performance of the… employee’s duties as such, where the employer has a degree of control over the employee, the place of work and the performance of the task which has to be carried out.” (Lord Clarke paragraph 40). Another conclusion would “not only be impracticable and irrational but would also constitute an unwarranted intrusion into the private lives of competent adults who within the sphere of day to day living are likely to be better placed to make judgements as to what will be conducive to their health and safety than their employers will be.” (Lord Brodie paragraph 24). Cilck here to view the full transcript.