With bookmakers slashing odds on it being the coldest winter for 100 years, employers and occupiers will be concerned to ensure that positive steps are taken to implement a winter weather policy in order to avoid slipping incidents and resultant personal injury claims. Sarah Mills, Legal Director, considers what employers/occupiers need to do in order to protect individuals from the British weather.
Avoid the slips
The Occupier’s Liability Act and the Health and Safety at Work Act, together with associated Regulations impose duties protecting the safety of individuals whilst at work or visiting property.
In particular, Regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992 includes a requirement that "every floor in a workplace…shall be kept free from … any substance which may cause a person to slip, trip or fall." The Regulations’ Code of Practice specifically refers to winter weather, requiring that "arrangements should be made to minimise risk from snow and ice" which may include "gritting, snow clearing and closure of some routes, particularly outside stairs, ladders and walkways on roofs".
Moreover, the HSE has produced specific guidance relating to winter weather, stressing that the risk should be assessed and a system put in place to manage it. The HSE require the following action to be taken:
- Monitoring of temperatures
- Identification of areas most likely to be affected by ice
- Action if freezing temperatures are forecast
- Address matters such as gritting, diverting pedestrians and covering walkways
A number of positive duties are therefore placed on employers and occupiers, who accordingly must be mindful of the threat of inclement weather and take steps to mitigate those risks.
What has to be done?
Historically the Court of Appeal has adopted a hard line. In Murphy v Bradford MBC (1991) the Defendant was found to be in breach of the Occupiers Liability Act where the Claimant had slipped on a sloping pathway, despite this being cleared and gritted prior to the incident in question.
The Court of Appeal found that the Claimant’s accident had been caused by the slipperiness of the path and that special consideration should have been given by the Defendant in view of the snowfall and the sloping nature of the path. The Defendant’s system was found to be insufficient and the Claimant was successful.
Similarly, in the more recent Scottish case of McKeown v Inverclyde Council (2013) a school janitor who slipped on ice on exterior stairs (that he personally had failed to salt sufficiently) was successful in securing damages. It was found that whilst his employer had a reasonable weather system in place, it had failed to properly implement or maintain it and had not appropriately trained the Claimant on the gritting process. It was insufficient for the weather procedure to be in place and documented; it also had to be implemented.
However, in the 2015 case of Wilson v Bourne Leisure, the court gave judgment for the Defendant notwithstanding an admission that it had not followed its own winter weather procedure in failing to grit a path in its holiday park.
The specific facts of this case are important as it appears that a common sense approach was taken by the Court. Following inclement weather, the Claimant decided to take a path that had not yet been gritted, notwithstanding the fact that gritting crews were in the vicinity and advised the Claimant that they would shortly grit his chosen path.
The Claimant proceeded on the icy path regardless and slipped sustaining injury. The Claimant alleged breach of the Occupiers Liability Act on the basis that the Defendant had failed to follow its own weather policy. The Defendant argued that steps had been taken to address the weather conditions and that if they had gritted the path any earlier the grit would have been washed away by the heavy rainfall. The court agreed, finding that there had not been any breach of the Occupiers Liability Act and noting that the Claimant had chosen to take the path in question rather than waiting.
The case law confirms that not only does the weather policy have to be in place and documented (with all risks assessed and monitored) the procedure must also be actioned when necessary. If not, an employer/occupier will only escape liability in specific, limited circumstances.
As set out above in McKeown, the court found for the Claimant notwithstanding the fact one of his duties was to grit the area in question. The Court of Appeal in the case of King v RCO Support Services Limited (2001) did likewise. The Claimant was employed to grit an icy yard when, after approximately two hours work, he stepped onto an icy area and slipped sustaining injury.
The Court of Appeal held that the gritting task was a manual handling operation within the Manual Handling Regulations and the presence of the ice ought to have been considered when assessing the risks. As no defence of reasonable practicability had been presented, the Defendant was found liable given that the Claimant’s concentration would lapse over of the length of the task. However, the Court did assess contributory negligence at a level of 50%.
Accordingly, employers must take care to safeguard individuals from risks presented by the winter weather they are specifically engaged to address!
Specialist footwear/protective clothing?
The court appears to have made a distinction between risks exposed to whilst at work and risks which are no greater than those which a member of the public would experience, but are simply occurring during working time.
In the Scottish case of Kennedy Cordia Services LLP (2004) the Claimant was employed by the Defendant as a home carer who slipped on ice when attending a visit. The Claimant alleged that the Defendant was in breach of Regulation 4 of the PPE Regulations 1992 by failing to provide her with shoe grips to prevent slipping on ice.
The Court of Session disagreed and found that the Claimant had been given training on weather conditions and the slipping risk to the Claimant was similar to that of any member of the public. Accordingly there was no obligation on the Defendant to provide PPE to reduce the risk of injury pursuant to the Regulations.
Similarly, in the recent case of Parr v Wirral University Teaching Hospital NHS Foundation Trust (2014) the Claimant (a community midwife) slipped on ice during a home visit and subsequently alleged breach of Regulation 4 of the PPE Regulations on the basis that her employer ought to have provided protective footwear.
Again, the court specifically drew a distinction between employees working in adverse weather conditions as a matter of routine who would need to be provided with protective equipment and those individuals, such as the Claimant, who came across bad weather on occasion. The Court dismissed the claim finding that the risk to which the Claimant was exposed was not a risk whilst ‘at work.’
Whilst employers are not required to provide protective footwear to reduce the risk of slipping on ice as a matter of course (unless employees are regularly working in adverse weather conditions), extra care is required to deal with inclement winter weather.
The winter weather policy and procedure should be in place, acted upon, monitored and reviewed to avoid slipping incidents and the associated claims. Indeed specific care must be taken in respect of those individuals engaged to undertake the gritting/salting process to avoid/ reduce the risk of those individuals slipping on the ice they are employed to remove!