At this time of year with the risk of snow and ice there is a corresponding increase in the risk of slips and falls causing injury. This article looks at the legal position regarding the employer’s liability to pay compensation to its employees who have fallen during the course of their work.
The position regarding employees who fall and suffer injury whilst in the workplace, whether that be a factory, office or firm’s car park is relatively clear. The employer is obliged to take adequate steps to reduce the risk of slipping as far as reasonably practically possible. So in a car park, the employer must ensure that there is a system of gritting in place and that where there is a risk of snow or ice that gritting is implemented in good time before the car park is used by employees. The duty on the employer is to carry out an assessment of the risk and to act on the findings of that assessment. Failure to do so is likely to render the employer liable to pay compensation.
The legal position regarding employees whose duties take them outside the workplace was until recently very much less clear. Many employees have jobs which require them to travel to other locations or which require work away from the main workplace as an intrinsic part of the job. For example refuse collectors, care workers and delivery drivers have to travel to deliver the service they are paid for. What is the position if they slip and sustain injury during the course of that work?
The writer recently acted for a refuse collector who suffered injury in these circumstances. The facts are straightforward. He and his colleagues were collecting refuse on a very cold snowy day. At the start of the shift they had rung the depot to report very icy conditions and had been told “do the best you can”. They had carried on. My client Mr Smith was injured when he stepped out of the refuse vehicle and almost immediately slipped and fell as a result of snow and ice on the ground, as a result suffering a nasty injury to the shoulder.
The claim was denied throughout by the local authority. During the course of investigation it became apparent that the local authority had considered the risk of operatives having to walk across slippery surfaces and had gone so far as to consider a trial of clip-on shoe grips which would have significantly increased the level of grip and consequently decreased the risk of slipping. However for reasons which were never adequately explained the trial of these grips did not take place and nothing was done.
Mr Smith won his case at trial, the judge finding that the local authority having correctly identified the risk of slipping had simply failed to follow through with a trial of the grips and an assessment of whether they would assist in reducing that risk. Significantly, the judge found that if the local authority having conducted the trial concluded that they would have made little difference, for example because operatives may not have used them, or that the cost would have outweighed the benefits they would not have been found liable.
The position has now been confirmed by the Supreme Court in the case of Kennedy v Cordia (Services) LLP. In that case the Claimant was a home carer employed by the Defendant to visit clients in their homes to provide personal care. She worked in Glasgow. In the winter of 2010 she slipped and fell on snow and ice and suffered injury. She won her case initially, but lost when the employer appealed. She in turn appealed to the Supreme Court, who found that the employer’s failure to carry out a risk assessment meant that her claim must succeed. Further, the Supreme Court found that the failure to carry out a risk assessment gave rise to an inference that the employer’s failure to provide protective equipment (for example clip-on grips) caused or materially contributed to the accident.
In conclusion, the law now is clear. The employer must carry out a risk assessment to identify the risk to its employees, and that risk assessment must include the risk of slipping on snow or ice outside the workplace. Having done so it must act on the findings of the risk assessment. Failure to do so is likely to render it liable to pay compensation. Conversely, if the employer has done a risk assessment and properly considered its findings it is unlikely to be liable.
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