Under the Management of Health and Safety at Work Regulations 1999 the employer is required to make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work, and the risks to the health and safety of individuals not in his employment arising out of, or in connection with, the conduct of the business.

Questions can arise as to whether an employer is required to conduct a risk assessment and, if so, in what form, where the employee is under the supervision and control of another corporate entity, a scenario which commonly arises in different industries. Will it suffice that the controlling entity is the only one to carry out a risk assessment?

In a recent Court of Appeal decision of Uren v Corporate Leisure (UK) Limited and MOD [2011] EWCA Civ 66, the court confirmed that the requirement on the employer to carry out a risk assessment could not be delegated to another. The case concerned a claim for damages arising from the serious injury which occurred to a serviceman during a "Health and fun day" at RAF High Wycombe. Corporate Leisure had supplied the equipment and individuals who oversaw the day and questions arose as to the respective responsibilities of Corporate Leisure and the MOD.

The MOD accepted it had a duty to carry out a risk assessment and this was confirmed by Lady Justice Smith who said:

"It seems to me that the duty to undertake a risk assessment is so closely related to the common law duties of the employer that it would be remarkable if the duty to undertake a risk assessment were delegable…I do accept that what amounts to "a suitable and sufficient" risk assessment may well vary according to the circumstances. For example I can see that if an employer uses a contractor for some activity and satisfies himself that the contractor has carried out a thorough risk assessment in relation to that activity, that might well lead to the conclusion that the risk assessment carried out by the employer is suitable and sufficient, even though it is not as detailed as would be otherwise required. That would be a question of fact in each individual case and it is impossible to generalise as to the standard of risk assessment which will be required of an employer".

In the context of a health and safety prosecution it is clear that the investigating authorities will require evidence that the employer has carried out a risk assessment. The decision, however, is to be welcomed because it emphasises that what is a suitable and sufficient risk assessment is a matter of degree, to be determined by what is appropriate having regard to all the relevant circumstances.