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Scotland’s Snow: Falling On The Ground

Scotland’s Snow: Falling On The Ground

One thing we know about in Scotland is cold and tough weather.  It is one of our national characteristics, whether we like it or not.

Yesterday’s judgment from the Supreme Court in Kennedy v Cordia (Services) LLP takes the relevance of our weather to a new level: can an employer be liable for failure to protect employees in the snow and ice?

The pursuer, Tracey Kennedy, was employed by Cordia as a home carer.  Just before Christmas  2010, she was walking to a client’s house down a snow covered path. She slipped and fell, injuring her wrist.

The question before the court was whether Cordia was liable for failing to provide protective wear, such as non-slip shoes, which may have reduced the chances of an accident.

At first instance, Mr Greasly, a health and safety expert, gave evidence.  He stated that non-slip wear was widely available, and that other Councils in Scotland had provided such items to employees.  Consequently, the court found Cordia liable.

The case was subsequently appealed to the Inner House of the Court of Session, which reversed the decision.  It considered that Mr Greasly's evidence was inadmissible in certain respects, and also that the previous judge had erred in law in finding Cordia liable for a breach of statutory duty or at common law.  As the Inner House judges stated – and as some of us may have anticipated – if Cordia were liable, it would mean:

“...they were, unreasonably, not entitled to rely on their employees’ common sense and their ability, as normal adults, to wear what, as individuals, they found to be appropriate footwear for slippery conditions, in circumstances where the training provided by the defender had included advice and instruction about such matters.”

In short, as Lady Smith summarised, “no employer is under a duty at common law to address, ameliorate or eliminate every risk which an employee may encounter in the course of the working day.”

In response, the pursuer appealed to the Supreme Court. 

The Supreme Court overturned the decision of the Inner House, allowing the appeal and finding Cordia liable. The judges stated Cordia were aware of a history of accidents each year due to their home carers slipping on snow and ice, and they were aware that the consequences of such accidents were potentially serious. Those circumstances alone would lead an employer to take reasonable care for the safety of its employees to inquire into possible means of reducing that risk.

The judges found that there is no doubt that an employer owes a duty of care towards its employees; the question in the present case is not whether a duty of care existed, but whether it was fulfilled.

They held that, in the circumstances, the only inference which could reasonably have been drawn was that the breach of regulation 4(1) - which places the obligation on all employers to ensure that suitable personal protective equipment is provided to their employees who may be exposed to a risk to their health or safety while at work - had caused or materially contributed to the accident. Cordia were therefore liable to Miss Kennedy under the PPE Regulations.

This case has clear implications for employers in ensuring their employees are properly protected and prepared at work. As the court stated, in such cases it is not ‘if’ there is an obligation, but if that obligation has been met. The five judges in this case, two of whom are Scottish, decided it had not. 

Read the whole judgement here

Luke Burgess-Shannon