Many of us wish we were a bit healthier, a bit fitter, perhaps a bit thinner. That we could somehow magic up some extra time to squeeze an hour in at the gym or to get to that exercise class before or after work. Everyone seems so busy these days and for some exercise just never seems to happen. For others, exercising in the workplace may well provide a solution.
Employers are generally keen to promote good health amongst staff. Having fitter staff has all sorts of benefits for an organisation, not least in terms of morale, minimising absence and decreasing staff turnover.
Where formal gym facilities are not on offer employers may be willing to allow a meeting room or another suitable area to be used by employees to participate in informal exercise sessions. Encouraging staff to get healthier and providing a convenient forum for this to happen should be seen as a good thing - but will that always be the case?
What if an employee gets injured during one of these sessions; suffering a new injury, aggravating an old injury or exacerbating an existing condition? Could the employer be liable for the employee's injuries? Even if the employer has not organised the session, it has not dictated the content and employees are not required to attend? Possibly. This does not mean employers should simply refuse to allow exercise to take place on their premises, it just means they will need to give a little thought to what providing 'facilities' may entail - to ensure exercise in the workplace really is good for everyone.
Whether an employer could be liable for injuries suffered by an employee in such circumstances will depend on how the injuries were sustained and whether the activity could be seen as being part of the employment of those taking part.
It is unlikely that an exercise session would be regarded as being part of someone's employment if they are not required (and have not been persuaded) to supervise the session or participate in it and the activities could not be regarded as being part of the employee's job. It is possible that the position may not be so clear cut if the activities take place during normal working hours, although it is unlikely that voluntary exercise would be regarded as an activity carried out in the course of someone's employment.
If there is a chance that the session could be regarded as taking place in the course of someone's employment then whether or not any liability arises will depend on whether the injured party can establish there has been negligence or a breach of statutory duty and whether the injured party can overcome the legal presumption that those voluntarily taking part accept the risks that come with it. After all, adults also have to accept some responsibility for the risks they take.
The need to undertake a risk assessment
The case of Uren v Corporate Leisure UK (1) and Ministry of Defence (2)  EWHC 353 looked very recently at whether an employer could be held liable for the injuries suffered by an employee while participating in an organised health and fun day.
The day involved members of the RAF engaging in a number of 'It's a knockout' type games. One of these games was a relay race requiring members of the teams to run up to an inflatable pool, get in over the side, grab a piece of plastic fruit, get out of the pool and take the plastic fruit back to a bucket. The pool was manufactured as an inflatable to be filled with balls; for the game in question it was located on a grass field and contained about 18 inches of water.
The claimant took his turn in the game and on entering the pool he hit his head on the bottom and broke his neck. His case was that the game gave rise to an unacceptable risk of serious injury and that steps should have been taken by the defendants to avoid the risk - both defendants had failed to properly assess and respond to the potential risks. The defendants accepted the risk assessments that were carried out were defective, their case was that the risk of serious injury was slight and there was no reason for modifying the way the game was played.
At first instance the court found for the defendants and dismissed the claimant's claim for compensation on the basis that only a very small risk of serious injury existed and taking into consideration the social benefit of the game the defendants had not breached their duty to the claimant. The claimant appealed and the Court of Appeal directed a re-trial, which was to be limited to "the question of the degree of risk of serious injury entailed in the game as played and whether that degree of risk was acceptable in the light of the social value of the game". Following the re-trial the court found;-
- the risk of serious injury arising from head-first entry into the pool should have been foreseen as creating a more than minimal risk. The risk needed to be considered in order to make a conscious decision whether or not to take steps to obviate or reduce it;
- the game clearly had a social value but the risk of serious injury should not have been allowed. The court accepted expert evidence that the simplest and cheapest solution would have been to prohibit head-first entry. If that had been done the accident would not have happened.
Mr Justice Foskett made it clear his decision was not intended to represent a threat to leisure and sports events of a similar type. If a full and proper risk assessment is undertaken and a proportionate and sensible response to any real risk is taken it is rare that a claim will succeed.
The Uren case was decided in the employee's favour because the court found that an adequate risk assessment had not been undertaken and appropriate measures taken as a result. If an appropriate risk assessment had been undertaken Mr Uren may well have failed in his claim on the basis that the risks were acceptable in light of the social value of the game, and Mr Uren had voluntarily taken part, understanding that participation would involve taking some risk.
While the court ultimately found for the claimant in the Uren case, the judgment is consistent with the Compensation Act 2006. This was implemented to some extent as part of the Government's initiative to tackle practices that stop normal activities from taking place because people fear litigation or have become risk averse.
The Compensation Act 2006 Part 1 provides that when considering a claim in negligence or breach of statutory duty a court may - in determining whether the defendant should have taken particular steps to meet a standard of care - have regard to whether a requirement to take those steps might prevent an activity which is desirable from taking place or might discourage persons from undertaking functions in connection with a desirable activity.
Need for a risk assessment even if the activity is not undertaken in the course of employment
The case of Reynolds and Strutt v Parker LLP  EWHC 2263 is another example of an employee injured while participating in a team building event organised by his employers. In this case the claimant attended an activities afternoon arranged by his employer for all employees, which included at the end of the day a cycle race. Near to the end of the race the claimant collided with another rider and fell, sustaining serious brain injuries.
In this case the court found that he was not at the event in the course of his employment, nevertheless his employers had breached their duty of care in failing to carry out a proper risk assessment for the event, as the event organisers, and were liable to the claimant as a result.
The judge referred to the judgment of Lord Justice Smith in Uren; that a failure to carry out such a risk assessment could never be the direct cause of an injury, however, there would be some cases where it will be shown that the failure to carry out a proper risk assessment has been indirectly causative of the injury and where that is shown liability will follow. This was such a case, although the damages awarded to the claimant were reduced to take into account his own contributory negligence in the way he was riding and his failure to wear a helmet.
In both the Uren case and the Reynolds case the employees were attending team building events organised by their employers. In the Uren case the Ministry of Defence was held liable as a result of its failure to carry out a risk assessment, which as Mr Uren's employer, it could not delegate to someone else. Mr Uren was attending the event voluntarily, but it was accepted he was on duty.
In the Reynolds case the defendants were held liable because they breached their duty of care as organisers of the event, rather than as Mr Reynolds' employers; the court held he was not participating in the event in the course of his employment. However, as with the Uren case liability arose because of a failure by the defendants to undertake an adequate and suitable risk assessment.
If employers are not organising the sessions or actively encouraging involvement in any exercise / fitness activities - instead they are simply providing an area within which activities can be undertaken - it is unlikely the employer will be responsible for injuries suffered by an employee who participates in those activities. However, employers should still give consideration to the risks that may be involved.
Owner's / occupier's liability
Even if an employer can avoid liability in its role as employer thought will also need to be given to any owner's or occupier's liability that may arise where the activities being undertaken are within the workplace. An employer will need to think about the room or other area that is to be used for any exercise sessions / activities that are set up. If there is any defect with the premises which contributes to any injury suffered by an employee then the employer may well be liable for those injuries as the owner / occupier of the premises.
Risk assessments are again key. A good risk assessment will balance the activity to be undertaken with any limitations on the area where it is to be carried out, and impose sensible controls - such as limiting numbers taking part, or ensuring that the room is cleared before use perhaps, rather than furniture just being pushed to the side, particularly where the activity is expected to involve running or jumping. If an external trainer is coming in to lead workplace sessions then check their risk assessment and insurance to ensure that your controls are consistent.
Many employers will have public liability insurance in place which might provide cover for civil claims arising in this circumstance (subject to any deductible). If exercise in the workplace is being considered, it may be prudent to check that appropriate insurance cover is in place for the premises in question, and make insurers aware of the nature of the activity that will be undertaken on the premises. Cover could be denied if the insurer could argue a breach of the disclosure duty.
Protecting the employer from liability
While there may be risks associated with allowing work premises to be used for employees to undertake exercise / fitness activities together, such risks should be capable of being managed and should not stop employers from encouraging their workforce to engage in social and fitness activities, or indeed stop employers from providing employees with an appropriate venue for such activities.
Employers need to make sure they have thought about any risks attributed to the activity or the premises being used, and that they have managed those risks through a risk assessment which imposes sensible and proportionate controls to minimise the possible hazard.
This will assist to prevent injury, but if injury occurs it will also limit an employer's liability both in the face of a compensation claim but also if there is an investigation and contemplation of criminal proceedings for health and safety breaches.
Consider the following if you allow or are considering allowing exercise / fitness activities to be undertaken in your workplace;
- Ensure any third party leader / fitness instructor of the group has appropriate insurance cover and that he / she has undertaken an appropriate risk assessment. Make sure you know what their control measures are, mirror them in your own risk assessment and ensure controls are communicated to those taking part if observance on their part is required;
- Risk assess the activity and area where it is to take place - and ensure any recommendations arising from the risk assessment are implemented and / or communicated as necessary;
- Check whether you might want any existing employer's liability and public liability insurance policies to cover the activities proposed to be undertaken if an injury does occur and let your brokers know of the activity to avoid any later arguments about non disclosure or cover;
- Consider requiring participants to read and sign a form: confirming (if relevant) they know and understand the activity is not supervised or led;
explaining that there are risks involved in participation in the intended activity;
advising that they should check with their doctor if ill health or a previous injury might impact on their ability to participate;
informing them of any controls imposed by the risk assessment (such as limited numbers in a particular space);
advising them (if appropriate) to ensure they use mats (or other safety measures) for the activity;
requiring them to report any problems or accidents that occur in an activity session;
requiring them to ensure that the room has been cleared before commencing the activity (and if necessary thinking about the manual handling implications of any clearance required);
prohibiting the activity continuing unless there is more than one person present, and reminding them of the location and availability of first aid facilities and what to do in an emergency.
An employer cannot by law exclude liability for its negligence which may result in injury or death, however, signatures on a well thought through form of this type might avoid injury, and if there is a problem, might help an employer defeat a civil claim and deflect a prosecution.
A happy healthy workforce has many benefits. The need for a risk assessment should not deter an employer from encouraging the activity or become an excuse for the activity not to take place. A risk assessment is just a prudent step that should be taken to manage and minimise the risk of injury and, if injury occurs to minimise the risk of a claim, the opportunity for Fees for Intervention being levied (to meet any HSE costs incurred in investigating and advising on any issues), or a prosecution being commenced.