Posted on Monday 19th Dec 2016
Newsletter December 2016
Now that winter is upon us and worse weather conditions can be expected (apologies for this gloomy prediction) this issue contains two seasonal cases; one deals with health and safety matters and the other deals with HR issues.
Don’t Slip up When Carrying Out PPE Assessments
Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) is a Supreme Court case heard by five Law Lords earlier this year. It is a personal injury case involving a relatively minor injury - a fractured wrist. As well as five Law Lords, there were also three QCs and instructing solicitors involved. The judgment, which runs to 39 pages, is notable for two things. First it endorses the argument brought by the appellant about conducting PPE risk assessments of workers involved in home visits to determine what PPE should be considered suitable and sufficient. The second interesting aspect of the case is one which is rather nearer home from Acton Jennings’s point of view. It considers the role of health and safety experts. Leaving aside these legal issues however there is solid advice for those clients that employ staff to make home visits.
Miss Kennedy was a home carer employed by Cordia (wholly owned by Glasgow City Council). On 18 December 2010 she was making a visit to the house of a terminally-ill, elderly, housebound person. There had been severe wintry conditions in central Scotland for a number of weeks prior to that date, with snow and ice lying on the ground. Miss Kennedy was driven to the house by a colleague, who parked her car close to a public footpath leading to the house. The footpath was on a slope, and was covered in fresh snow overlying ice. It had not been gritted or salted. As she walked up the path, she slipped and fractured her wrist.
At a hearing before a Lord Ordinary in the Court of Session evidence was given by a health and safety expert, Mr. Greasly, who concluded that Cordia’s risk assessments were ‘inadequate.’ Specifically, he stated.
“[Cordia] made a risk assessment but the identified preventative measures relied exclusively on the employee, via information and instruction, when dealing with inclement conditions.”
In his expert opinion, PPE existed in the form of non-slip attachments called “Yaktrax”. These, he submitted, would have substantially reduced the risk of a slip. The expert stated that this meant that the defenders were in breach of Regulation 3 of the Management of Health & Safety at Work Regulations 1999 (failure to carry out suitable risk assessments), and Regulations 4 and 10 of the Personal Protective Equipment at Work Regulations 1992 (requiring employers to provide suitable equipment to their employees to avoid risks to their health and safety, and ensure the equipment is properly used).
The Lord Ordinary agreed with him and Cordia were found liable for Miss Kennedy’s injury.
Cordia appealed successfully to the Extra Division of the Court of Session holding that the health and safety expert’s evidence was inadmissible, and that in any event there was no breach of the regulations or common law. In the Extra Division Lord Clarke gave his opinion that the health and safety practice of employers could not be the subject matter of expert evidence, either because it was a legal question within the knowledge of the court or because it was not a recognised body of science or experience, which was suitably acknowledged as being useful and reliable, and which could properly form the basis of opinions capable of being subjected to forensic evaluation. Interestingly at the Supreme Court Counsel for Cordia, at the outset of the appeal, conceded that so general an assertion was not correct and accepted that health and safety practice could properly be the subject of expert evidence. From our clients’ point of view the importance of the judgment lies elsewhere. The Supreme Court held that a reasonably prudent employer would have carried out a risk assessment – and had they done so, they would have learned that attachments were available at a modest cost to reduce the risk, and had been used by other employers, including other councils in Scotland, in a similar position. There was a causal component to the concept of “suitability” in terms of regulation 4(1) of the PPE regulations; namely that the protection offered must make the risk of injury “highly unlikely”. Miss Kennedy gave evidence that had the PPE been provided she would have used it. Therefore, it would be reasonable to infer that the failure to provide the anti-slip attachments materially contributed to her accident. The decision is of vital importance to any client who requires employees to use footpaths and carriageways in icy conditions.
Cakes and Ale
Williams, Turner and Stoker -v- The Whitbread Beer Company is an old case (1995) but nonetheless interesting (not to say amusing) if only for the facts alone because one has serious doubts that there would be same outcome if the case were heard today.
It would be fair to say that Whitbread’s seminar on improving behavioural skills did not go all that well. The free bar after the seminar was probably the reason. Whitbread had in fact organised the proverbial in a brewery and our musketeers did not pass up the opportunity to avail themselves of their employer’s generosity. They were in short drunk: alas, not amiably drunk. The lessons of the seminar were soon forgotten.
Turner poured beer over Stoker. Stoker punched Turner. Williams, not to be outdone, distinguished himself by telling the manager who had asked him not to swear quite so much to go distance himself and fornicate. At the management meeting next morning all three were unapologetic and were, unsurprisingly one might think, dismissed.
Not in the least shamefaced all three brought unfair dismissal claims and remarkably all three won. The ratio was that by providing the free bar, Whitbread had, to a large extent, brought it upon themselves. Dismissal in those circumstances was outside the range of reasonable responses.
That was 1995. Maybe people partied harder then and drunken bad behaviour was more acceptable but we doubt the outcome would be the same now. However, there is an argument that if an employer knows an employee is drunk but allows him to keep on drinking, the employer may be in breach of its duties to the employee if he is injured as a result and also liable for any harm he does to others. Even at the Christmas party one needs to remain vigilant.
Whitbread stopped brewing beer in 2010 and now concentrate on coffee. A move welcomed by many.
We reported in a previous Newsletter (August 2015) the HMRC announcement that the exemption from income tax and NICs for termination payments up to the current threshold of £30,000 would be retained but that the distinction between contractual and non-contractual payments in lieu of notice would be removed. Any payment that reflects what an employee would have received if they had worked their notice period would be taxed and subject to NICs, regardless of whether the employer has a contractual entitlement to make a payment in lieu.
The announcement in the Autumn Statement now says that payments in lieu of notice will be taxed only as far as they represent basic pay. This appears to mean that the government has reconsidered the proposals that would have potentially brought a wider range of payments (such as compensation for loss of use of a company car during the notice period and possibly even some bonus payments) into the tax charge. Further details will doubtless be forthcoming
The changes remain scheduled to come in from April 2018.
May we wish all our clients a happy Christmas and a prosperous and peaceful New Year.
In keeping with our practice in recent years we have not sent Christmas cards but have made donations to two of our client charities.