Morrisons case confirms employers must take reasonably practicable steps to ensure the safety of each and every employee not just the majority

A recent ruling in the Court of Appeal has upheld Morrisons' £3.5 million fine for health and safety related breaches. The court held that an employer should be taking reasonably practical steps to mitigate against health and safety risks arising out of an employee's specific circumstances, even where no such risk would have arisen had it not been for such circumstances.

Our article explores the possible impact of this decision on employers.

Does this ruling expand the health and safety duties of an employer?

Whilst this ruling does not expand the health and safety duties of an employer, it does provide a useful reminder of what compliance (and non-compliance) with such duties looks like in practice.  

Employers will be aware of their general duty under the Health and Safety at Work etc Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This essentially requires employers to first, carry out a risk assessment to establish the risks to their employees, and then weigh up the risks against the trouble, time and money needed to control them, to decide to what level of controls to implement.

Do risk assessments need to be carried out for each and every employee?

HSE guidance acknowledges that carrying out risk assessments for actual persons i.e. the risk to an individual taking full account of the nature, extent and circumstances in which exposure arises is very resource intensive and difficult to implement in practice and therefore suggests that risk assessments are carried out by reference to a number of hypothetical persons. Risk assessments should cover enough hypothetical persons to provide a ‘full picture’ of the risks generated to enable employers to put in place control measures to protect those exposed. 

The Morrisons case suggests that employers should be identifying any risks to which an employee is exposed where such risk is materially related to the activities of the employee.

Do control measures need to be put in place for each and every employee?

HSE guidance states it is necessary to check whether actual persons exposed to the risks identified within the risk assessments fall within the profile of the hypothetical person(s) adopted for the assessment of the risk. If the control measures adopted are found not to be adequate to protect actual persons, more stringent measures may need to be introduced.

The Morrisons case confirms that where a risk has been identified in relation to the particular circumstances of an employee, employers should be taking reasonably practical steps to ensure the safety of that employee.

So, where did Morrisons go wrong?

All employees of Morrisons are subject to a company rule which requires them to store their possessions in a locker whilst at work. The lockers in the particular store in this case were located up a flight of stairs. One employee, Matthew Gunn, suffered from epilepsy and as such his mother recommended that Matthew's locker be moved to the ground floor to avoid the risk of him collapsing when on the stairs. Morrisons failed to implement the change and tragically Matthew having had a major seizure fell and sustained a very serious head injury from which he died.

The court held that the fact the staircase was safe for use by most members of the work force did not alter the fact it presented a risk to Matthew Gunn. He was employed to work at Morrisons, and it was Morrisons' rule which required him to use the staircase to gain access to his locker which he was obliged to store his belongings in. Whilst the staircase did not present a risk to all members of the staff, it created a material risk to the health and safety of Matthew Gunn and therefore Morrisons should have put in place reasonably practicable steps to minimise the risk. Reasonably practicable steps i.e. placing the locker on the ground floor were suggested by Matthew's mother and could have been implemented but were not.

Key takeaways

• Risk assessments should cover enough hypothetical persons to provide a ‘full picture’ of the risks generated to enable employers to put in place control measures to protect those exposed. 
• Employers should encourage employees to be open about their medical conditions to allow employers to better understand the risks that their employees are exposed to.
• Where risks are identified, employers should be taking reasonably practicable steps to ensure the safety of those employees exposed to the risk.
• Specialist input may be needed from occupational health to ensure employers are adequately dealing with risks arising from an employee's medical conditions.

If you would like any assistance with managing the risks to your employees, please contact us.