What can employers learn from Morrisons' conviction for health and safety failings?

Time waits for no man. So, the familiar saying goes. It is also true that the passage of time is not necessarily a barrier to prosecution for health and safety offences.

The importance of good workplace health and safety practices and making sure that the assessment of risk is reviewed regularly, was reiterated last month, after supermarket Morrisons was convicted of three offences relating to the death of an employee back in 2014.

Background

The case revolved around an employee, Mr Gunn who suffered from epilepsy. Mr Gunn was working on shift at the Morrisons store in Tewkesbury in September 2014 and was believed to have been going upstairs to his locker when he suffered an epileptic seizure and fell down the stairs. Tragically, Mr Gunn died of his injuries on 7October 2014.

This meant the regulatory spotlight fell on Morrisons and its approach to ensuring the health and safety of Mr Gunn. The circumstances surrounding Mr Gunn's death were investigated by Tewkesbury Borough Council, who prosecuted Morrisons for four alleged breaches of health and safety legislation.

Morrisons pleaded guilty to one charge, relating to its failure to comply with an HSE inspector's request to provide relevant contact details for an individual responsible for health and safety at Morrisons.

Morrisons pleaded not guilty however, to the following offences, all contrary to health and safety legislation:

• Failure to ensure the health, safety and welfare of employees.
• Failure to carry out a suitable and sufficient assessment of the risks to the health and safety of employees.
• Failure to review the risks and assessments of employees.

Morrisons contended that it had taken all steps that were reasonably practicable to mitigate known risks to health and safety and had not committed any of the offences listed above. However, the jury disagreed and convicted Morrisons on all three counts.

Disability discrimination and reasonable adjustments

Employers can also learn lessons from this case from an HR and employment law perspective. Given the employee in this case suffered from epilepsy, he met the definition of being "disabled" under the Equality Act 2010 (EA2010).

The EA2010 prohibits several forms of discrimination against disabled employees. It also imposes a positive duty on employers to make "reasonable adjustments" for disabled employees, in certain circumstances. Where the duty arises, the employer must effectively treat the disabled person more favourably than others to reduce or remove that individual's disadvantage.

The duty can arise where a disabled person is placed at a substantial disadvantage by:

• An employer's provision, criterion or practice.
• A physical feature of the employer's premises.
• An employer's failure to provide an auxiliary aid.

In this case, the employee was clearly placed at a substantial disadvantage (i.e., increased and unreasonable risk of serious injury or death) by a physical feature of the employer's premises, which here was a staircase to a first-floor locker he used.

An employer will not be obliged to make reasonable adjustments unless it "knows or ought reasonably to know" that the individual in question is disabled. In this case, the employee's mother had informed his managers of the risk posed by the staircase he was using.

A classic example of a reasonable adjustment would be an adjustment to the employer's physical premises, in order to remove the substantial disadvantage. Here, the employee's locker was at the top of a staircase, which the employer knew was a problem for him, because of his epilepsy. A reasonable adjustment in these circumstances (as posed by the prosecuting lawyer in this case) would involve simply moving the employee's locker from the first floor to the ground floor, to prevent him from having to use stairs to access it.

Our comment

Regarding the published facts of this case, it would appear on the face of it that the duty to make reasonable adjustments was not met; had Mr Gunn not have been fatally injured therefore Morrisons might instead have been facing a claim for disability discrimination.

Employers must identify and rectify workplace issues where they arise. They must also respond quickly and effectively to legitimate concerns raised by disabled employees surrounding measures needed to facilitate their workplace safety.

If an employer intends to refuse to make a reasonable adjustment, it must objectively and fully rationalise its decision. Always consider taking specialist advice from health and safety, medical and/or occupational health professionals when trying to understand what might amount to reasonable adjustments for your disabled employees.