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Redundancy law and practice Part 4: unfair redundancy dismissal

UNFAIR REDUNDANCY DISMISSAL

  • Automatically unfair dismissal for specified reasons
  • No genuine redundancy situation
  • Failure to consult
  • Unfair selection for redundancy
  • Failure to offer alternative employment.

Key case: Williams v Compair Maxam Ltd

CM was losing business and decided to cut costs. It was decided to keep a team of core staff members. Other employees were dismissed on grounds of redundancy. This was based on personal preference and the trade union was not consulted. Some dismissed workers complained of unfair dismissal. The ET dismissed the complaints on the basis that personal preference was a reasonable method selection for redundancy. The workers appealed to the EAT which allowed the appeal and stated that there were five principles which employers should apply, as follows:

  • Early warning: employers should give as much warning as possible about redundancies.
  • Consultation with trade union.
  • Fair selection criteria: should not be based on personal opinion but should be judges against, for example, attendance record, efficiency, disciplinary record and attendance.
  • Fair selection in accordance with decided criteria.
  • Consideration of alternative employment.

The EAT also stated that the employer should do as much as is reasonably possible to mitigate the impact on the workforce and to satisfy workers that the selection has been made fairly and not on the basis of personal whim.

Employers must act reasonably. This generally involves consultation and warning.

  • Selection process must be fair
  • Employer must make reasonable efforts, where practicable, to find suitable alternative employment
  • Employer must consult and warn.

Polkey v AE Dayton Services Ltd (1988): test of reasonableness may be satisfied in following circumstances:

Employer taking view that, in exceptional circumstances of particular case, normal appropriate procedures would have been futile, would not have changed decision to dismiss, and could be dispensed with.

Effect of failure to consult is a question of fact for the ET.

No genuine redundancy situation

Moon v Homeworthy Furniture (Northern) Limited: In hearing a complaint of unfair dismissal for redundancy, an ET can investigate the origin of the redundancy situation, including questions such as unfair selection or lack of notice, but it cannot investigate the reasons for creating the redundancies. It cannot investigate the commercial and economic reasons which caused a closure nor investigate the rights and wrongs of the employer’s decision.

References:

James W Cook & Co (Wivenhoe) Ltd v Tipper and others [1990] IRLR 386, CA

Moon v Homeworthy Furniture (Northern) Ltd [1976] IRLR 298, EAT

Failure to consult

Williams v Compare Maxam Ltd: employer should give as much warning as possible of impending redundancies, to enable trade unions and affected employees to consider alternative solutions and to find possible alternative employment.

Case Examples:

University and College Union v University of Stirling (2015) Times, May 19, Supreme Court

In 2010 a Scottish employment tribunal decided that dismissal following the non-renewal of a limited term contract was not excluded from the definition of “dismissal as redundant” for the purposes of an employer’s duty to consult. This decision was reversed by the EAT. The Scots Inner House upheld the decision of the EAT. The claimants appealed to the Supreme Court.

The appeal was allowed.

An employee was dismissed as redundant for the purposes of an employer’s duty to consult on proposed collective redundancies if the reason for the dismissal was not something to do with him personally but was a reason relating to the employer, for example the need to effect business change.

The expiry and non-renewal of a limited-term contract amounts to a dismissal. The question is whether the dismissal related to the individual or to the needs of the business.

Keeping Kids Company (In Compulsory Liquidation) v Smith and others (2018) Morning Star, April 20, EAT

KKC applied for a government grant in June 2015. The application included a proposal to make half its staff redundant in September 2015. The application was successful and KKC received £3 million. Following a police investigation into child sexual abuse allegations reported in the media on July 30, KKC could not meet the requirement of obtaining matching funding from philanthropists and the government asked for the money to be returned. KKC went into liquidation and all its employees were made redundant. A number of employees claimed protective awards on the basis that the company had failed to consult. KKC argued that it had not known the names of employees being made redundant, and that adverse publicity related to the child abuse investigation amounted to “special circumstances”. The ET found that there had been a proposal to dismiss by June 2015 and the company should have started the consultation process promptly after that date. The full 90 days protective awards were made. KKC appealed to the EAT.

The appeal was allowed in part.

Events which occur after a proposal to make more than 20 employees redundant cannot be used as a defence for failing to consult.

E Ivor Hughes Educational Foundation v Morris and others [2015] IRLR 696, EAT

Statute reference: Trade Union and Labour Relations (Consolidation) Act 1992, ss. 188, 189

M and others were employed as teachers at a private school. At a meeting in February 2013 the employer decided that the school would close at the end of the summer term if pupil numbers did not increase. In April 2013 all the teachers were dismissed for redundancy with effect from July 2013. There was no consultation. The ET found that the duty to consult had arisen in February 2013 and awarded the maximum 90 days protective award. The employer appealed to the EAT.

The appeal was dismissed.The duty to consult had arisen in February 2013 and there were no special circumstances which made it impracticable to consult.

Vining v London Borough of Wandsworth (2017) Morning Star, September 15, Court of Appeal

The claimants were employed as parks constables by LBW. They were dismissed for redundancy following a reorganisation of the parks police service and complained of unfair dismissal. Unison brought proceedings seeking protective awards for LBW’s failure to consult about proposed redundancies. LBW argued that the claimants were employed in the police service and were not employees protected from unfair dismissal and were excluded from the obligation to consult. The ET found that they were not employed in the police service. The EAT reversed this decision in the light of the decision in London Borough of Redbridge v Dhinsa that parks police were employed under police service contracts. The claimants appealed to the Court of Appeal.           

The appeal was allowed.

The right to be consulted was one of the essential elements protected by Article 11 (freedom of association) of the European Convention on Human Rights.

A union must be allowed to pursue a claim for a protective award about whether there has been a failure to consult, even if its members do not have collective consultation rights.

The case would be remitted to the ET to decide whether or not there had been a failure to consult.

Note: Police forces have remedies to replace employment rights from which they are excluded. Parks police have no such remedies. This could not be justified.

Kelly v The Hesley Group Ltd [2013] IRLR 514, EAT

Statute reference: Trade Union and Labour Relations (Consolidation) Act 1992, s.188

H Ltd employed 300 people at a school. The company decided that, because of financial pressures, it needed to change the employees’ contracts by reducing their hours and freezing their salaries. The company proposed the changes in August 2010. It sought agreement to the changes. By November 2010 it was realised that job losses were possible if the contracts were not agreed. In December 2010 the company decided to terminate the original contracts and offer re-employment on revised terms. 32 employees did not accept the new terms. The company advised them that it was entering into collective consultation in relation to the 32 and consulted with a joint consultative committee. This committee did not have a negotiating function. Its constitution provided for the nomination and election of members, but the employer co-opted people onto it.

The claimants brought proceedings on the basis that they were entitled to a protective award for failures in the consultation process. They argued that the word “proposing” in section 188 of the 1992 Act should have been interpreted as “contemplating” and that consultation should have begun at an earlier stage, in November 2010. The ET rejected the claims on the ground that there was no duty to consult before the employer had formulated its proposals, applying the decision in MSF v Refuge Assurance plc. The claimants appealed to the EAT.

The appeal was allowed.      

It was clearly established that there was no duty to consult before an employer had formulated its proposals.

The tribunal had failed to determine whether the committee representatives were appropriate.

Consultation with a view to reaching agreement was not to be equated merely to the passive receipt of information about an employer’s plans. The fact that the committee was not a negotiating body was problematic.

It is not enough to provide an opportunity for consultation on particular topics. The requirement to consult with a view to reaching agreement does not mean that the employer is disentitled from having a firm position. It does mean that he must be prepared to listen and to move from it of good reason is shown.

To the extent that compliance with the legislation is technical, this may be reflected in compensation but not in liability.

References:

Heron v City Link-Nottingham [1993] IRLR 372, EAT

R v British Coal Corporation ex p Price [1994] IRLR 72, DC

Rowell v Hubbard Group Services Ltd [1995] IRLR 195, EAT

Mugford v Midland Bank plc [1997] IRLR 208, EAT

Davies v Farnborough College of Technology [2008] IRLR 14, EAT

Alexander v Brigden Enterprises Ltd [2006] IRLR 422, EAT


Redundancy law and practice Part 3: suitable alternative employment

Suitable Alternative Employment

  • Unreasonable refusal of suitable alternative employment results in loss of statutory redundancy pay. S. 141, ERA.
  • Offer must be made before end of old job and must start within four weeks.
  • Burden of proof on employer to show that suitable offer was made: Kitching v Ward.
  • Where an employee states that there is no interest in alternative employment, and the employer therefore does not make an offer, the employee is entitled to redundancy payment: Simpson v Dickinson.
  • Offer of alternative employment must set out terms of new job and differences from old job: Havenhand v Thomas Black Ltd.
  • Where an employee accepts the new offer, they are treated as never having been dismissed. They may complain of unfair dismissal from the old job: Hempell v WH Smith & Sons Ltd; Jones v Governing Body of Burdett Coutts School.
  • Hindes v Supersine Ltd [1979] IRLR 343, EAT: offer of employment suitable only where reasonably equivalent.
  •  
  • Carron Company v Robertson [1967] 2 ITR 484, Court of Session: reasonableness of refusal of employment offer depends upon different factors from those to be considered in deciding suitability of offer. Test of suitability is objective. A test of reasonable refusal depends upon reasons personal to employee.
  •  
  • Dutton v Hawker Siddeley Aviation Ltd [1978] IRLR 390, EAT: a proposal for alternative work is not considered generally suitable where change of trade or type of work. Such an offer may be suitable where it involves temporary change of trade, which an employee may reject after trial.

Statutory trial period

An employee may try out the new job, where it is offered, for a trial period of up to four weeks. These are four calendar weeks and not four working weeks. Where the employee leaves within this period, they may claim redundancy pay in relation to the original redundancy dismissal. Benton v Sanderson Kayser Ltd.

Turvey v CW Cheyney & Son Ltd [1979] IRLR 105, EAT: contractual trial period starts when employee tries changes imposed by employer. This lasts for a “reasonable time” and is followed by the statutory trial period which lasts four weeks.

Air Canada v Lee [1978] IRLR 392, EAT: an employer imposing new terms of employment technically amounts to breach of contract. Held, employee has reasonable time to consider reaction to changes. In effect, there is a right to a reasonably long trial period for new terms to be assessed.

Turvey v CW Cheyney & Son Ltd [1979] IRLR 105, EAT: contractual trial period starts when employee tries changes imposed by employer. This lasts for a “reasonable time” and is followed by the statutory trial period which lasts four weeks.

Benton v Sanderson Kayser Ltd [1989] IRLR 19, CA: four weeks means four consecutive calendar weeks, not four working weeks.

Unreasonable refusal of a suitable offer

Burden of proof on employer to show that:

  • Offer was suitable
  • Refusal was reasonable.

Suitability includes job related factors, eg pay, hours of work and location.

Reasonableness relates to worker’s individual circumstances.

Change of work location: whether reasonable depends on factors including travel issues and childcare.

Case Examples:

Bird v Stoke-on Trent Primary Care Trust: B’s job was described as being at risk, following the restructuring of the NHS. She was invited to apply for whatever other posts were available. Unsuccessful applicants would be made redundant. B did not apply for any of the other posts because they were exclusively managerial. She was made redundant but the employer refused to pay her redundancy payment of £70,000. The ET stated that B had refused to engage in the process of seeking alternative employment and had decided to secure the redundancy cash payment. B appealed to the EAT which allowed the appeal and remitted the matter to a fresh tribunal. It found that the ET had substituted its own view about the reasonableness of the reason for B’s refusal rather than considering whether someone in her particular circumstances could reasonably have taken the view of the alternative post which she did.

RR Donnelly Global Document Solutions Group Ltd v Besagni and others [2014] ICR 1008, EAT

Statute reference: Transfer of Undertakings (Protection of Employment) Regulations 2006, reg.7

B and others were employed by a local authority in its parking enforcement department. Contracts were transferred to R which confirmed that B and others would be required to relocate. B and others refused to relocate and were dismissed for redundancy. They complained of automatic unfair dismissal in that they had been dismissed for a reason connected with their redundancy. The ET upheld their claims, stating that the phrase “entailing changes in the workforce” did not apply to a change of location. R appealed to the EAT.           

The appeal was dismissed. The fact that many transfers of undertakings involved a change in the workplace negated rather than supported an interpretation which involved a change of location. Otherwise, employees dismissed for refusing to relocate would be deprived of a finding of automatic unfair dismissal and that would go against the grain of the Regulations.

Carron Company v Robertson [1967] 2 ITR 484, Court of Session: reasonableness of refusal of employment offer depends upon different factors from those to be considered in deciding suitability of offer. Test of suitability is objective. A test of reasonable refusal depends upon reasons personal to employee.

References:

Kitching v Ward [1967] ITR 464

Simpson v Dickinson [1972] ICR 474, NIRC

Havenhand v Thomas Black Ltd [1968] 2 All ER 1037

Hempell v WH Smith & Sons Ltd [1986] IRLR 95, EAT

Jones v Governing Body of Burdett Coutts School [1998] IRLR 521, CA

Benton v Sanderson Kayser Ltd [1989] IRLR 19, CA

Bird v Stoke-on-Trent Primary Care Trust UKEAT/0074/11

Devon Primary Care Trust v Readman [2013] IRLR 878, CA


Redundancy law and practice Part 2

Closure of the workplace

  • An employee is dismissed for redundancy if it is attributable wholly or mainly to the fact that the employer has ceased or intends to cease to carry on business where the employee was employed.
  • Bass Leisure Ltd v Thomas: an employee’s place of work for the purposes of redundancy is a question of fact. The place where the worker actually worked is a key factor. Mobility clauses are irrelevant for this purpose. This decision was approved by the Court of Appeal in High Table v Horst. Where an employee has worked in only one location, that is the place of work regardless of any mobility clause. Where an employee has worked in several locations, the place of work is established by inquiry into the facts, taking account of contractual terms which might be relevant.
  • Where an employee is instructed to work at a different location or branch and the employee refuses, right to redundancy pay may be lost because she/he has refused offer of suitable alternative employment.
  • Where there is a mobility clause, this may be invoked by the employer to avoid making redundancy payments. In Home Office v Evans, the Court of Appeal ruled that an employer was entitled to invoke a mobility clause to avoid a redundancy situation on the closure of part of its business. The motives of the employer were not important. The issue was whether it was legally entitled to invoke the mobility clause.

Reduction of workforce

  • See section 139(1)(b), ERA 1996.
  • The employer requires fewer employees to do a particular kind of work. There need not necessarily be less work to be done. In McRea v Cullen & Davison Ltd, the employer wished to make better use of its resources. A manager who had been on sick leave for a long period was made redundant on his return to work because the employer had decided that the work could be done without him. The IT found that the dismissal was attributable to redundancy.
  • Where the employee is dismissed because of diminished requirements, this is dismissal for redundancy. In Safeway Stores v Burrell, B started work with S as a petrol station manager. S reorganised management and B’s post disappeared. He was told that his position had been made redundant. He complained of unfair dismissal. The ET found in his favour, applying the function test to decide that the requirements of the business to carry out work which B was doing had not ceased or diminished. S appealed to the EAT. The appeal was allowed. If the requirement for employees to do work of a particular kind remained the same, there could be no dismissal by reason of redundancy. The tribunal had erred in failing to ask itself whether there was a true redundancy situation, looking at the overall requirement for employees to carry out work of a particular kind and whether that situation caused B’s dismissal. 
  • Murray and another v Foyle Meats. The claimants had contracts with FM to work in a slaughterhouse. The contracts contained a flexibility clause which stated that the claimants could be required to work in other parts of the plant. The market declined and FM made 35 per cent of slaughterhouse workers redundant. The claimants complained of unfair dismissal, arguing that they were not redundant because they could be required to work under the same conditions, although in different departments. The House of Lords found that the claimants had been made redundant. It applied a test of actual causation: was there a reduction in the workforce? Was the dismissal wholly or mainly attributable to that reduction?
  • Where the employer retains the same number of employees, but on different work: redundancy where particular job has disappeared altogether. Where job has been changed, for example because of changes in technology see Amos and others v Max-Arc Ltd. The test is whether the changed job requires different aptitudes, skill or knowledge.
  • Where the employer dismisses an employee because there is less work to do and the employee refuses to accept a cut in hours, this is redundancy. Packman t/a Packman Lucas Associates v Fauchon. F was a bookkeeper employed by P Ltd. P Ltd introduced a software package which reduced the number of hours to be worked by a bookkeeper. P Ltd asked F to reduce the number of hours which she worked. She refused and she was dismissed. The ET found that the reason for dismissal was redundancy. This decision was upheld by the EAT.
  • Bumping: when an employer offers a redundant employee another employee’s job and that employee is dismissed for redundancy. See Gimber and Sons v Spurrett.

REDUNDANCY PAYMENTS

Source: section 135, ERA: employee has basic right to redundancy payment

Those excluded from payments:

  • Independent contractors
  • Employment outside Great Britain
  • Less than two years continuous employment
  • Offer of suitable alternative employment
  • Misconduct
  • Offer of re-engagement or alternative employment.
  • Former registered dock workers and share fishermen
  • Crown servants, members of the armed forces or police services
  • Apprentices who are not employees at the end of their training
  • A domestic servant who is a member of the employer’s immediate family.

Payment Calculation:

Source: section 162, ERA

Information required:

  • Age of employee
  • Length of continuous employment
  • Amount of gross weekly pay

Working backwards, for each year in which employee was aged between 41 and 64: one and a half week’s pay.

For each year aged between 22 and 41: one week’s pay.

For each year from start of work to age 22: half a week’s pay.

Notes: 20 years maximum calculation

Maximum gross weekly pay: £538

Employment before 18 not counted.

Current maximum redundancy payment: £16,140

Weekly pay is the average earned per week over the 12 weeks before redundancy notice is required.

Short-term and temporary lay-offs

Workers can claim statutory redundancy pay that they are eligible for and have been temporarily laid off, without pay or less than half a week’s pay for either:

  • More than 4 weeks in a row
  • More than 6 non-consecutive weeks in a 13-week period.

Employers must be informed of the intention to claim statutory redundancy pay within 4 weeks of the last non-working day in the 4 or 6-week period.

The claim could be rejected if normal work is likely to start within 4 weeks and continue for at least 13 weeks.

Reduction of redundancy payments:

  • Misconduct
  • Employees nearing retiring age.

Where an employer fails to pay, the redundant worker may apply for payment direct from National Insurance Fund.

Disputes are referred to Employment Tribunal: section 170, ERA.

Redundancy payments not subject to recoupment.

Time limit for claims: six months from “relevant date”

Relevant date:

  • Contract terminated by notice: date when notice expires
  • Contract terminated without notice: date of termination
  • Fixed term contract: date on which fixed term expires
  • Employee taken to have been dismissed: date on which notice expires
  • Special rules where employee worked for trial period. 

Redundancy law and practice Part 1

 REDUNDANCY: AN OUTLINE OF LAW AND PRACTICE

Redundancy, like much of employment law, is an increasingly complex concept. Its legal definition often bears little relationship with the reality of the distress, mental and physical, caused to workers who have lost their jobs. It is not unknown for employers to dispense with unwanted workers on the pretext of a fake “redundancy”, accompanied by minimally acceptable financial compensation. Such false redundancies can be attacked through an application of selected decided cases from the mass of case law.

Redundancy law and procedure is highly complex. The statutory provisions are overlaid with a mass of case law. Most of the concepts of redundancy law have been litigated, with complex results.

Areas of future research include the meaning of “workplace”, given the number of people working from home, and “affected” by redundancy – does this mean more than workers who are actually at risk of redundancy or who are made redundant?

KEY CONCEPTS

  • Definition of redundancy: closure of business; closure of workplace; reduction of workforce
  • Redundancy payments: suitable alternative employment; statutory trial period
  • Lay-off and short-time
  • Guarantee pay
  • Unfair redundancy dismissal: no genuine redundancy situation; failure to consult; unfair selection; failure to offer alternative employment; reorganisation and new jobs
  • Redundancy and discrimination: pregnancy/maternity dismissals; race discrimination; indirectly discriminatory selection criteria; Last in first out; disability
  • Time off to look for work
  • Collective consultation.

STATUTORY SOURCE MATERIAL: section 139, Employment Rights Act 1996 (ERA):


Redundancy.

  1. For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—
  2. the fact that his employer has ceased or intends to cease—
  3. to carry on the business for the purposes of which the employee was employed by him, or
  4. to carry on that business in the place where the employee was so employed, or
  5. the fact that the requirements of that business—
  6. for employees to carry out work of a particular kind, or
  7. for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
  8. have ceased or diminished or are expected to cease or diminish.

Sections 145 and 164, Employment Rights Act 1996

164 Claims for redundancy payment.

  1. An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date—
  2. the payment has been agreed and paid,
  3. the employee has made a claim for the payment by notice in writing given to the employer,
  4. a question as to the employee’s right to, or the amount of, the payment has been referred to an employment tribunal, or
  5. a complaint relating to his dismissal has been presented by the employee under section 111.
  6. An employee is not deprived of his right to a redundancy payment by subsection (1) if, during the period of six months immediately following the period mentioned in that subsection, the employee—
  7. makes a claim for the payment by notice in writing given to the employer,
  8. refers to an employment tribunal a question as to his right to, or the amount of, the payment, or
  9. presents a complaint relating to his dismissal under section 111,

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

  • In determining under subsection (2) whether it is just and equitable that an employee should receive a redundancy payment an employment tribunal shall have regard to—
  • the reason shown by the employee for his failure to take any such step as is referred to in subsection (2) within the period mentioned in subsection (1), and
  • all the other relevant circumstances.
  • Subsections (1)(c) and (2) are subject to section 207A (extension because of mediation in certain European cross-border disputes).
  • Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsections (1)(c) and (2).

Employers must act reasonably: this generally involves consultation and warning.

  • Selection process must be fair
  • Employer must make reasonable efforts, where practicable, to find suitable alternative employment
  • Employer must consult and warn.

Polkey v AE Dayton Services Ltd (1988): test of reasonableness may be satisfied in following circumstances:

Employer taking view that, in exceptional circumstances of particular case, normal appropriate procedures would have been futile, would not have changed decision to dismiss, and could be dispensed with.

Effect of failure to consult is a question of fact for the ET.


Health and Safety at Work Act: leading cases (2)

HEALTH AND SAFETY AT WORK ACT LEADING CASES (2)

REAL RISK

Death of child

R v Porter (2008)

P was the headmaster of a private school aged 3 to 16. The school had two playgrounds, access between which was by a set of steps. In July 2004 a number of children were in both playgrounds during morning break. There was one teacher on duty in the upper playground. K, a boy aged  three, went down the steps and jumped from the fourth from bottom step. He fell and injured his head. He was taken to hospital where he contracted MRSA and died.

P was charged under section 3 of the 1974 Act. It was alleged that he had exposed the boy to the risk of falling from the flight of steps. He was convicted and fined £12,500 plus £7500 costs. He appealed to the Court of Appeal. The appeal was allowed. The court stated the following:

  • The conviction was unsafe.
  • The prosecution had to establish that the accused had failed to ensure that a child had not been exposed to risk to his safety by the conduct of an undertaking.
  • The risk which the prosecution had to prove was a real risk as opposed to a fanciful or hypothetical risk.
  • There was no objective standard which applied to every case but there would be important factors which would indicate one way or the other whether there was such a risk.
  • There was nothing wrong with the construction of the steps themselves and there had been no previous accidents despite the fact that there were numerous steps from which a child might have chosen to jump.
  • The fact that risk was a part of everyday life went to the issue of whether an injured person had been exposed to real risk by the conduct of the operation in question.

SAFETY RISK

Race discrimination

Amnesty International v Ahmed (2009)

A, a woman of North Sudanese origin, was employed by Amnesty International, She applied for promotion to the post of Sudan Researcher. Her promotion was denied because Amnesty took the view that the appointment of a person of A’s ethnic origins would compromise its perceived impartiality and would expose her to a safety risk when visiting Sudan and Eastern Chad. A resigned and complained of direct race discrimination. The employment tribunal upheld her complaint and made the following points:

  • But for her ethnic origin, A would have been appointed.
  • Her ethnic origin was the sole reason for the withdrawal of the appointment.
  • The decision of the employer had not been taken purely on health and safety grounds.
  • Race was the driving factor behind the decision.

Amnesty appealed to the Employment Appeal Tribunal (EAT) which dismissed the appeal and made the following points:

  • The basic question in direct discrimination cases was what the grounds were for the treatment complained of.
  • The fact that the employer’s reason for refusing promotion was its concern about impartiality and safety was irrelevant.
  • A had been discriminated against on the ground of her ethnic origins.
  • If there was a risk in sending A to Eastern Chad, the employer could avoid that risk by not sending her there.
  • What was going on in the head of the putative discriminator was irrelevant.

 The EAT commented that it felt some unease at being required to reach a conclusion which might have implications for other employers whose employees were required to work abroad in situations of acute political or ethnic tension. No doubt such cases were rare, but where they did occur, employers would be in a highly invidious position.

Liability of company: all reasonable precautions taken

R v Gateway Foodmarkets Ltd (1996)

An employee of G Ltd fell down a lift shaft at one of its stores and suffered fatal injuries. Maintenance of the lift had been contracted out to a reputable and experienced contractor. The lift was faulty. An electrical contact had to be freed by hand and it had become the practice for personnel to do this regularly. The worker who had died had attempted to free the contact when he fell through a trap door which had been left open by the contractor. G Ltd was prosecuted under section 2 of the 1974 Act. At first instance the Crown Court ruled that G Ltd was liable because section 2 imposed strict liability, subject to reasonable practicability. The company’s employees had caused a breach of the section. G Ltd appealed to the Court of Appeal.

The appeal was dismissed. The court stated that it was overwhelmingly clear that section 2 should be interpreted to impose liability on employers whenever there was a failure to ensure the health, safety and welfare of employees. It was not necessary for the prosecution to prove criminal intent. In the present case, the failure to take all reasonable precautions had been at store management level. This was attributable to the company, even though at senior management or head office level, the company had taken all reasonable precautions.

Details of offences charged

Maersk Co Ltd v Vannet (1997)

M Co was charged with offences under sections 2 and 3 of the 1974 Act. The charges alleged that a skip operated with the company, which should have been lifted by means of placing the eyes of lifting slings on trunnions on the side of the skip, had been unsuitable. In the course of lifting the skip two employees had been injured. The company objected to the charges on the basis that it did not specify the defect in the system of work, plant or equipment which gave rise to the risk.

The Scottish court ruled that the statement of the charges was sufficient to give notice of the existence and nature of a risk of injury to employees and persons not employed by the accused.

The charges contained allegations as to the context in which the accident happened. The prosecution had given fair notice of the general manner in which the risk arose. It was not necessary for the prosecution to go on to specify or explain how it was that the risk in question came to emerge.

Section 3: actual control

RMC Roadstone Products Ltd v Jester (1994)

R Ltd was engaged in manufacturing road building materials. It engaged two independent contractors, D and P, to replace asbestos sheets on R Ltd’s premises. D and P were told to use old asbestos sheets from the roof of a disused factory next to R Ltd’s premises. They were told to remove the sheets. A front-loading shovel was supplied by R Ltd. It was found by the magistrates’ court that R Ltd could give directions to D and P on the way in which the work was done, but that in fact they were left to do it in any way they chose. R Ltd did not provide a safe system of work and was not under a duty to do so.

While D was removing asbestos sheets from the roof, he fell through a skylight and was killed. R Ltd was prosecuted and convicted under section 3 of the 1974 Act for failing to discharge its duty to conduct its undertaking in such a way that persons not in its employment were not exposed to risks to their health. R Ltd appealed to the Divisional Court.

The appeal was allowed. The Divisional Court ruled as follows:

  • The prosecution had to establish three matters for liability under section 3. First, the accused must be an employer; second, the activity or state of affairs giving rise to the complaint must fall within the scope of the accused’s conduct of its undertaking; and there must be a risk to the health and safety or persons other than employees.
  • The word “undertaking” meant “business or enterprise”. It was inconceivable that Parliament should have intended that there should be criminal liability where an employer had no control. It was necessary for an employer either to exercise actual control or to be under a duty to do so. Where an employer left an independent contractor to work in the way which he saw fit, then that work should be outside the scope of the “undertaking”.
  • If R Ltd was under a duty to provide a safe system of work for the independent contractors, then its duty under the Act would extend beyond that imposed by the civil law. The Act was not intended to go beyond the common law.
  • The magistrates had not been entitled to find that D’s work in removing the sheets was within the scope of R Ltd’s conduct of its undertaking.

Note: one difficulty with this case is that it may mean that employers can avoid all responsibility for the safety of independent contractors by refusing to give instructions on how work is done. On the other hand, if an employer gives directions on how the work is to be done, then that employer will remain liable under the Act. 


Health and safety general definitions (3)

Health and safety general definitions (3)

PRACTICABLE

Stricter standard

Adsett v K & L Steel Founders and Engineers Ltd (1953)

A worked in a foundry. His job was to shovel various casting sands and compounds through a grate onto a conveyor belt below. A freely breathed in the resulting dust. He contracted pneumoconiosis. The employer had installed a dust extractor near the conveyor as soon as the idea was thought of. This was after the onset of A’s disease and was too late to save him from disablement. The issue in the case was the meaning of the word “practicable”. The ordinary dictionary definition was “possible to be accompanied with known means or resources” or “capable of being carried out in action”.

The High Court found that the word “practicable” on its own connoted a stricter standard than “reasonably practicable” and might men that issues of cost should be eliminated. But no measure could be “practicable” if it was not within current knowledge and invention. The employer was not in breach of statutory duty.

On appeal to the Court of Appeal it was argued that the technology to install and extractor did exist but the employer had not thought of this particular application. The court rejected this argument, holding that to be “practicable” meant that a measure had to be known for its application by people in the industry, and especially by experts.

Moorcroft v Thomas Powles & Sons Ltd (1962)

M, a plasterer, was working on a flat roof. The roof had an opening of five feet by three feet. The opening had an upward projecting timber edge around its perimeter. M stepped backwards and fell through the opening. He was injured. The employer was prosecuted for breach of the relevant regulations which stated that all such openings should be made safe by the provision of guardrails. If compliance with the regulations was impracticable, then such measures as were “practicable” should be taken.

The High Court found that “practicable” imposes a stricter standard than “reasonably practicable”. “Practicable” excludes considerations of cost. In the present case, it would have been practicable to have put a board over the opening. The simplicity of this measure overrode the necessity for M to work quickly so as to cover the roof before the weather changed.

PROCESS

R v A1 Industrial Products plc (1987)

A1 employed three workers to demolish a large kiln in its factory. Two workers used respirators throughout the operation while the third used a respirator only after the sides of the kiln had been pushed in and a large cloud of asbestos dust was raised. Samples of the dust were found to contain such a concentration of asbestos as to be liable to cause danger to workers’ health. The company was found guilty of failing to provide approved respiratory equipment for use in a factory “process” in which asbestos dust was likely to escape. This decision was reversed by the Court of Appeal which ruled that the demolition of the kiln was not a “process”.

Nurse v Morganite Crucible Ltd (1989)

MC Ltd had demolished two large driers which contained asbestos. It had not provided respiratory equipment, did not store the broken parts in suitable receptacles and failed to keep that part of the factory where the parts were being broken up reasonably clean. The company was convicted by the magistrates’ court of a number of regulatory offences. Its appeal to the Crown Court was dismissed. Its subsequent appeal to the Divisional Court succeeded. The prosecution appealed to the House of Lords.

The Lords decided the following:

  • The appeal was allowed.
  • In R v A1 Industrial Products, the Court of Appeal had stated that it was wrong to extend the meaning of “process” beyond some manufacturing process or continuous and regular activity carried on as a normal part of the operation of a factory.
  • If that was correct, it would limit statutory protection. It was difficult to see how the statutory protection could be applied to normal building operations or to a work of engineering construction.
  • The word “process” should be used in the broader sense of including any activity of a more than minimal duration involving the use of asbestos.
  • Obviously, the single act of knocking a nail into an asbestos panel could not be considered a “process”. There had to be some degree of continuity and repetition of a series of acts in order to constitute a “process”.
  • On the facts of the A1 Industrial Products case and of the present case, the activity went on over a period of days involving materials containing asbestos, and was a “process”.

REASONABLY PRACTICABLE

Quantum of risk test

Edwards v National Coal Board (1949)

Mine owners were required by legislation to take all “reasonably practicable” steps to make sure that all travelling roads in mines were reasonably safe. E was killed when a section of road gave way. The section had no timber supports. About half of the whole length of the road was shored up. The NCB argued that the cost of shoring up all roads in every mine was prohibitive compared with the risk.

The Court of Appeal found that the question at issue was not the cost of shoring up all roads in very mine operated by the NCB. The issue was the cost of making safe the section of road which fell. Some roads were secure and showed no signs of falling. Others might already have fallen and had already been repaired. This particular section was already supported by time over half its length. The cost of making it completely safe was not great compared to the risk of injury and loss of life. The safety measures were entirely practicable and were in common use. It was also reasonable that they be taken when the balance was struck between the quantum of risk and inconvenience of the available safety measures.

Marshall v Gotham Co Ltd (1954)

M, an employee of G Co, was killed by a roof fall while working in the company’s gypsum mine. Before work began, the roof had been inspected by tapping it with a hammer. The roof fall had been caused by an unusual geological condition known as “slickenside” which was undetectable. M’s wife claimed compensation from the employer.

The House of Lords decided that the employer was not liable. M’s death had not been caused by any failure by the employer to take reasonable steps to secure the roof.

Failure to fit seat belts

Chandler v Gatwick Handling Ltd (1997)

C worked as a baggage handler at Gatwick Airport. His employer had not fitted seat belts to the lorries used by C and his colleagues. In January 1994 C was thrown out of a lorry when the door flew open. His shoulder was dislocated. He claimed compensation from the employer on the basis of negligence, in particular:

  • Failing to inspect or maintain the door
  • Failing to provide or require employees to use seat belts.

The Crown Court decided the following:

  • The maintenance system was reasonable
  • The door had not been defective and had not opened of its own volition
  • There was no legal requirement for the lorries to be fitted with seat belts
  • In the circumstances, it would be impracticable for the employer to fit and require the wearing of seat belts
  • It was not reasonable to expect the employer to fit seat belts or to issue instructions that seat belts should be worn at all times
  • The employer was not liable.

Slippery floor

Vinnyey v Star Paper Mills Ltd (1965)

V slipped while attempting to move a pallet while cleaning up a floor on which slippery liquid had accidentally been poured. He had been told how to do the work and had been provided with a forklift truck to move pallets and squeegee mops to clean up the mess.

The High Court found that the employer was not liable in negligence. Only basic instructions were needed for such a simple job. These had been given and there was no breach of duty.

Crushing injury

Jenkinson v Brook Motors Ltd (1985)

J was employed as a handyman in a factory. He was asked to make a pair of tongs. This involve riveting which needed the help of a workmate. J attempted to do the work himself, using a hydraulic press. He crushed his thumb and claimed compensation from his employer. The Court of Appeal found the employer liable in negligence. It had failed to set up a safe system of work. Despite being an experienced worker, J was entitled to be supervised and to have the benefit of a properly thought out system of work. Damages were reduced by one-third for J’s contributory negligence


Health and safety general definitions (3)

Health and safety general definitions (3)

PRACTICABLE

Stricter standard

Adsett v K & L Steel Founders and Engineers Ltd (1953)

A worked in a foundry. His job was to shovel various casting sands and compounds through a grate onto a conveyor belt below. A freely breathed in the resulting dust. He contracted pneumoconiosis. The employer had installed a dust extractor near the conveyor as soon as the idea was thought of. This was after the onset of A’s disease and was too late to save him from disablement. The issue in the case was the meaning of the word “practicable”. The ordinary dictionary definition was “possible to be accompanied with known means or resources” or “capable of being carried out in action”.

The High Court found that the word “practicable” on its own connoted a stricter standard than “reasonably practicable” and might mean that issues of cost should be eliminated. But no measure could be “practicable” if it was not within current knowledge and invention. The employer was not in breach of statutory duty.

On appeal to the Court of Appeal it was argued that the technology to install and extractor did exist but the employer had not thought of this particular application. The court rejected this argument, holding that to be “practicable” meant that a measure had to be known for its application by people in the industry, and especially by experts.

Moorcroft v Thomas Powles & Sons Ltd (1962)

M, a plasterer, was working on a flat roof. The roof had an opening of five feet by three feet. The opening had an upward projecting timber edge around its perimeter. M stepped backwards and fell through the opening. He was injured. The employer was prosecuted for breach of the relevant regulations which stated that all such openings should be made safe by the provision of guardrails. If compliance with the regulations was impracticable, then such measures as were “practicable” should be taken.

The High Court found that “practicable” imposes a stricter standard than “reasonably practicable”. “Practicable” excludes considerations of cost. In the present case, it would have been practicable to have put a board over the opening. The simplicity of this measure overrode the necessity for M to work quickly so as to cover the roof before the weather changed.

PROCESS

R v A1 Industrial Products plc (1987)

A1 employed three workers to demolish a large kiln in its factory. Two workers used respirators throughout the operation while the third used a respirator only after the sides of the kiln had been pushed in and a large cloud of asbestos dust was raised. Samples of the dust were found to contain such a concentration of asbestos as to be liable to cause danger to workers’ health. The company was found guilty of failing to provide approved respiratory equipment for use in a factory “process” in which asbestos dust was likely to escape. This decision was reversed by the Court of Appeal which ruled that the demolition of the kiln was not a “process”.

Nurse v Morganite Crucible Ltd (1989)

MC Ltd had demolished two large driers which contained asbestos. It had not provided respiratory equipment, did not store the broken parts in suitable receptacles and failed to keep that part of the factory where the parts were being broken up reasonably clean. The company was convicted by the magistrates’ court of a number of regulatory offences. Its appeal to the Crown Court was dismissed. Its subsequent appeal to the Divisional Court succeeded. The prosecution appealed to the House of Lords.

The Lords decided the following:

  • The appeal was allowed.
  • In R v A1 Industrial Products, the Court of Appeal had stated that it was wrong to extend the meaning of “process” beyond some manufacturing process or continuous and regular activity carried on as a normal part of the operation of a factory.
  • If that was correct, it would limit statutory protection. It was difficult to see how the statutory protection could be applied to normal building operations or to a work of engineering construction.
  • The word “process” should be used in the broader sense of including any activity of a more than minimal duration involving the use of asbestos.
  • Obviously, the single act of knocking a nail into an asbestos panel could not be considered a “process”. There had to be some degree of continuity and repetition of a series of acts in order to constitute a “process”.
  • On the facts of the A1 Industrial Products case and of the present case, the activity went on over a period of days involving materials containing asbestos, and was a “process”.

REASONABLY PRACTICABLE

Quantum of risk test

Edwards v National Coal Board (1949)

Mine owners were required by legislation to take all “reasonably practicable” steps to make sure that all travelling roads in mines were reasonably safe. E was killed when a section of road gave way. The section had no timber supports. About half of the whole length of the road was shored up. The NCB argued that the cost of shoring up all roads in every mine was prohibitive compared with the risk.

The Court of Appeal found that the question at issue was not the cost of shoring up all roads in very mine operated by the NCB. The issue was the cost of making safe the section of road which fell. Some roads were secure and showed no signs of falling. Others might already have fallen and had already been repaired. This particular section was already supported by time over half its length. The cost of making it completely safe was not great compared to the risk of injury and loss of life. The safety measures were entirely practicable and were in common use. It was also reasonable that they be taken when the balance was struck between the quantum of risk and inconvenience of the available safety measures.

Marshall v Gotham Co Ltd (1954)

M, an employee of G Co, was killed by a roof fall while working in the company’s gypsum mine. Before work began, the roof had been inspected by tapping it with a hammer. The roof fall had been caused by an unusual geological condition known as “slickenside” which was undetectable. M’s wife claimed compensation from the employer.

The House of Lords decided that the employer was not liable. M’s death had not been caused by any failure by the employer to take reasonable steps to secure the roof.

Failure to fit seat belts

Chandler v Gatwick Handling Ltd (1997)

C worked as a baggage handler at Gatwick Airport. His employer had not fitted seat belts to the lorries used by C and his colleagues. In January 1994 C was thrown out of a lorry when the door flew open. His shoulder was dislocated. He claimed compensation from the employer on the basis of negligence, in particular:

  • Failing to inspect or maintain the door
  • Failing to provide or require employees to use seat belts.

The Crown Court decided the following:

  • The maintenance system was reasonable
  • The door had not been defective and had not opened of its own volition
  • There was no legal requirement for the lorries to be fitted with seat belts
  • In the circumstances, it would be impracticable for the employer to fit and require the wearing of seat belts
  • It was not reasonable to expect the employer to fit seat belts or to issue instructions that seat belts should be worn at all times
  • The employer was not liable.

Slippery floor

Vinnyey v Star Paper Mills Ltd (1965)

V slipped while attempting to move a pallet while cleaning up a floor on which slippery liquid had accidentally been poured. He had been told how to do the work and had been provided with a forklift truck to move pallets and squeegee mops to clean up the mess.

The High Court found that the employer was not liable in negligence. Only basic instructions were needed for such a simple job. These had been given and there was no breach of duty.

Crushing injury

Jenkinson v Brook Motors Ltd (1985)

J was employed as a handyman in a factory. He was asked to make a pair of tongs. This involve riveting which needed the help of a workmate. J attempted to do the work himself, using a hydraulic press. He crushed his thumb and claimed compensation from his employer.

The Court of Appeal found the employer liable in negligence. It had failed to set up a safe system of work. Despite being an experienced worker, J was entitled to be supervised and to have the benefit of a properly thought out system of work. Damages were reduced by one-third for J’s contributory negligence. 


Health and safety general definitions (2)

 Health and safety: general definitions (2)

IN THE COURSE OF EMPLOYMENT

Work away from employer’s premises

General Cleaning Contractors Ltd v Christmas (1952)

C was cleaning a sash window at premises away from the employer’s office. The top frame of the sash window slipped downwards, trapping his fingers. He let go of his had hold on the lower frame and fell from the window sill on which he was standing. He was injured and claimed compensation from his employer.

The employer was found liable for its failure to implement a safe system of work even though the premises at which the work was done was some distance from its office.

Disobeying instructions

National Coal Board v England (1954)

E was a coal miner. Against clear instructions and statutory regulations he assisted a shotsman to set up shot blasting. He coupled up wires which were part of the detonator mechanism. If he had been obeying his instructions he would have been well out of the way. The employer did not know that miners often helped a shotsman in this way. The shotsman thought that E had moved to a safe place. He detonated the explosive. E was very close to the explosion and was injured. He claimed compensation on the basis of the employer’s liability for the negligence of a co-worker. The employer’s defence was that E had acted entirely outside the scope of his employment in helping the shotfirer and that this had been in direct disobedience of working instructions and an infringement of coal mining legislation. This put E’s act outside the scope of his employment.

The House of Lords disagreed. E had been carrying out the work of a miner but doing it in a wrong way. It could not be said that in acting against instructions he was engaged in work totally outside his employment. The employer was liable but E’s compensation was reduced because of his contributory negligence.

Injury during journey from home to appointment

Nancollas v Insurance Officer (1985)

N was a disablement resettlement officer. He had to cover a wide area. On one day he had to travel from his usual office in Worthing to the Guildford office for a case conference about a disabled man. At the conference it was decided that he should interview the man at Aldershot on the following day. He drove directly from his home to Aldershot. During this journey he was involved in an accident and suffered neck injuries. He claimed industrial injury benefit. His entitlement depended on whether he was acting in the course of his employment at the time of the accident.

The Court of Appeal made the following points:

  • Each case depended on its own facts. There were no hard and fast rules.
  • Earlier cases which concentrated on the question of whether a worker was carrying out his employer’s instructions at the time had been, to a large extent, overtaken by developments in society generally. They had been decided at a time when employees were truly servants of their master.
  • The employment relationship was now different. It was no longer based on orders and instructions, but on requests and information. Contractual rights and duties were supplemented by mutual expectations of co-operation.
  • In older cases it had been held that employees were not in the course of employment while on their way to work from home. But it was a totally different case to be on the way from home to an appointment away from the office.
  • In a true sense, the road was the place of work and the employee was in the course of his employment while driving to his employment.
  • It would be a nonsense to allow a claim from someone who was injured on these facts while on his way from his normal office, but to disallow a claim just because the person had chosen to go to his appointment straight from home.     

Travelling between two places of work

Smith v Stages and Darlington Insulation Co Ltd (1988)

M was employed as a lagger at a power station. He and S, a colleague, were told to work for a week at another power station. They travelled to the other power station in S’s car. They worked a total of 19 hours and had no sleep. During the journey home, because of S’s fatigue, an accident happened which caused M to suffer serious injuries. He did not fully recover and died two years later. Proceedings were brought against S. It emerged that S had no insurance and the claim was amended to include the employer as defendant. It was alleged that S was driving the car either as the agent of the employer or in the course of his employment. At first instance, the court found that the driving had not been done in the course of S’s employment. M’s widow appealed to the Court of Appeal.

The Court of Appeal found that the journey had been made in the course of employment. The employer had authorised S to drive. The employer appealed to the House of Lords.

The Lords dismissed the appeal and made the following points:

  • An employee travelling from his ordinary residence to his regular place of work, by whatever means of transport, even if it was provided by his employer, is not acting in the course of his employment. But if he is obliged by contract to use his employer’s transport, then he is acting in the course of his employment while doing so.
  • Travelling in the employer’s time between workplaces or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces, will be in the course of his employment.
  • Receipt of wages will indicate that an employee is travelling in his employer’s time and for his benefit, and is acting in the course of his employment. In such a case, the fact that the employee might have discretion as to the mode and time of travelling, will not take the journey out of the course of employment.
  • An employee travelling in the employer’s time from his ordinary residence to a workplace other than his regular workplace, or in the course of  peripatetic occupation, or to the scene of an emergency, will be acting in the course of his employment.
  • A deviation from or interruption of a journey undertaken in the course of employment, unless merely incidental to the journey, will for the time being (including overnight interruption) take the employee out of the course of his employment.
  • Return journeys are to be treated on the same footing as outward journeys.

Police officer injured while playing football

Faulkner v Chief Adjudication Officer (1994)

F, a police officer, claimed disablement benefit for an injury suffered while he was playing football for a police football club. He argued that he had sustained personal injury arising out of and in the course of his employment. His claim was rejected on the basis that he had not been doing his job at the time of the injury. F appealed to the Court of Appeal on the ground that the role of the police had changed and that it could no longer be said that football amounted to recreation.

The appeal was dismissed. The question could not be answered by considering whether an injured person had been doing something reasonably incidental to his work. It was important to look at the factual picture as a whole and to reject any approach based on the fallacious concept that any one factor was conclusive.

MANUAL LABOUR

Definition

J & F Stone Lighting and Radio Ltd v Haygarth (1966)

H was employed as a television and radio repair engineer. Most of his work involved the repair or replacement of parts or adjustment of sets. The issue in the case was whether this amounted to “manual labour”.

The House of Lords ruled as follows:

  • The test of manual labour did not rely on physical strength. It was not a question of arduous work.
  • The whole character of the work had to be looked at. The test was whether, on the whole, the use of hands was a substantial part of the work. Where work involved partly manual and partly intellectual work, it had to be analysed to see which was incidental to the other. If the manual work was ancillary or incidental to the intellectual work, then it would nit be “manual labour”. But if the manual aspect was predominant, then it would qualify as manual labour.
  • In the present case, H’s work was predominantly a routine manual use of tools on work which was familiar to the engineer. It was therefore “manual labour”.      

Health and safety: general definitions

Health and safety cases: General health and safety terms (1)

ACCIDENT

Back injury caused by repeated lifting of patients

Mullen v Secretary of State for Work and Pensions (2002)

M was employed as an assistant care officer in a home for the elderly. As a result of the repeated lifting of patients over a number of years, she suffered from back pain which made her unfit for work. She applied for industrial injuries benefit. An adjudication officer and a social security appeal tribunal ruled that her injury had resulted from a gradual process and was not an “accident”. She applied to a Scottish court for leave to appeal against the decision. The court ruled in her favour and stated that a back injury sustained while handling a patient was an “accident”. Where there was a series of accidents, an applicant was not disqualified only because she could not identify which one caused or contributed to the condition. 

Deep vein thrombosis

In re Deep Vein Thrombosis and Air Travel Group Litigation (2003

A total of 55 passengers brought a group litigation claim against a number of international air carriers. Each claimant had suffered deep vein thrombosis (DVT) which resulted in serious injury or death, allegedly caused by cramped seating conditions and a failure to warn of the danger posed by the flight or to advise of the appropriate steps to minimise or eliminate the dangers. The High Court made the following points:
* A culpable act or omission by an air carrier in failing to warn its passengers of the risk of DVT and in failing to provide less cramped seating, was not an “accident”.

  • “Accident” means an unexpected or unusual event or happening. In the present case, each flight was normal and unremarkable and complied with all applicable aviation regulations.

The claimants appealed to the Court of Appeal. That court dismissed the appeal and stated the following:

  •  A non-event could not be an “accident”.
  • The alleged failure of international air carriers to warn passengers against the risk of DVT as a result of normal flights operated under normal procedures and conditions, or to advise passengers how to minimise that risk, and the provision of cramped seating which was an integral and permanent feature of aircraft, were not events which were capable of constituting an “accident”.
  • Inaction itself could never properly be described as an accident. It was not an event, it was a non-event, the antithesis of an accident.

Fire officer attending incidents

Chief Adjudication Officer v Faulds (2000)

F, a former senior fire officer, suffered from post-traumatic stress disorder which arose from his work. This involved a number of years attending road accidents, air crashes and fires. F was awarded industrial injuries benefit on the basis that he had suffered personal injury by an accident arising out of and in the course of his employment. The Chief Adjudication Officer appealed against the award, arguing that F’s condition had not been caused by an “accident”. The matter eventually reached the House of Lords which ruled that the decision to award benefit should be set aside. It made the following points:

  • “Accident” means “an unlooked-for mishap or an untoward event which is not expected or designed. It may also mean “any unintended an unexpected loss or hurt”.
  • F had not been subject to “accidents” despite having been exposed to great stress in attending incidents. He was required to attend such incidents in the course of his employment.

BUILDING

Definition

Elms v Foster Wheeler Ltd (1954)

FW Ltd was under contract to install four steam powered electrical generators in a power station which was under construction. The shell of the building had been constructed. FW’s work was to complete the inner parts. This involved not only putting in the generating machinery but also providing all the ancillary pipework, floors, galleries and steel stairways around the generating plant. E, an employee of the company, fell from some steel joisting. If this had been a “building operation”, scaffold boards should have been provided. E claimed compensation for breach of statutory duty on the basis that the whole work was a building operation.

The court ruled that there is no hard and fast definition of “building” or “building operation”. It is clear that the word “building” encompasses a wide range of structures. Each case has to be judged on its own facts. But an employee who is contributing to, or taking part in, the construction of part of a building is engaged in building operations.

Open-air structures without roof or catwalk

McGuire v Power Gas Corpn Ltd (1961)

P Ltd was building a plant for the conversion of oil to gas by a catalytic process. The plant covered an area of 80 square feet and was 30 feet high. Besides the actual containers in which the conversion took place, the structure supported stairs, gangways, catwalks, ladders, stanchions and pipes. There was no roof and it had no sides. It did not resemble a conventional building in any way. M fell from the structure and claimed compensation for his injuries.

The court made the following points:

  • A structure containing plant may still be a building notwithstanding that it is an open air structure without roof or walls. The word “building” is not restricted to conventional forms of building.

DETRIMENT

After termination of employment

Fadipe v Reed Nursing Personnel (2005)

F raised health and safety concerns during his employment with R. He was dismissed and when he applied for a new job, R supplied a reference which stated that although F’s work had been satisfactory, it would not give him any further work. F complained to an employment tribunal that R had subjected him to a detriment for having raised health and safety concerns. His complaint was rejected on the basis that the alleged detriment had occurred after the end of F’s employment with R. F appealed on the ground that the relevant statutory protection extended to former employees.

The appeal was dismissed. A person who had raised health and safety concerns while still an employee was not protected from the former employer’s detrimental acts committed after the employee had ceased to be employed.

IMPRACTICABLE

Definition

Jayne v National Coal Board (1963)

Safety measures in mining regulations were subject to the qualification that a lesser standard was acceptable if the normally required standard was “impracticable”.

A miner had been injured during underground shot firing. It was argued that, in contravention of the regulations, the shot firer had not personally checked that all men were clear of the danger areas. In defence of the employer it was argued that this was “impracticable”.

The court found that where legislation is made subject to the qualification that a lower standard is acceptable when circumstances make normal compliance “impracticable”, the employer is under a severe burden of proof. The word “impracticable” does not mean “physically impossible” but it does pose a high standard of proof that there were very good reasons for not taking precautions.

IN THE COURSE OF EMPLOYMENT

Tanker driver throwing down lighted match

Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942)

A petrol tanker driver lit a cigarette and threw the lighted match on the ground near the nozzle of the hose from which petrol was being pumped. The petrol ignited and caused a serious explosion. It was argued that he had not been acting n the course of his employment when he threw down the match. The House of Lords disagreed and ruled that he had been acting in the course of his employment.

Employee slipping on lubricant

Davidson v Handley Page Ltd (1945)

Just before her lunch break Ms D went to a water tap to clean her teacup. In the vicinity was a tank which contained lubricant for lathes. There were slatted duckboards on the floor. The area was slippery because of spillage of lubricant on the duckboards. As she was reaching for the tap, Ms D slipped and was injured. She claimed damages from her employer, alleging negligence arising from its failure to keep the area free from slippery substances. The employer argued that its liability ceased the moment an employee stopped actual work. It accepted liability for injuries which occurred while the employee was carrying out the employer’s work, it denied liability for any injuries which occurred while the employee was not working.

The court commented that the defence, if accepted, would give rise to extraordinary results. For example, if two employees were coming down from a scaffold, one to get a bag of nails and the other to go to the latrines, under this argument the one going to the latrines would not be protected. This was unacceptable to the common law.

The employer’s duty to take steps for the safety of its employees applies both during periods of actual work and while employees are carrying on activities incidental to their work.  

These case summaries have been prepared by employment lawyers based in Clifton, Bristol.


Floors, passages and stairs: health and safety cases

Health and safety cases: floors, passages and stairs

This compilation of interesting cases dealing with health and safety aspects of floors, passages and stairs, has been compiled by employment lawyers based in Clifton, Bristol.

DEFINITION OF FLOOR

Sand base of foundry

Harrison v Metropolitan-Vickers Electrical Co Ltd (1954)

H worked in a foundry. The foundry base was made of casting sand. Pits or holes were prepared in the floor to form moulds for castings. These were filled in after use and then redug as appropriate. Iron sheet walkways were laid on the sand to give access for the carrying of molten metal to the moulds. Molten metal was carried by two men each holding one end of a pole which held a ladle. The pole was about 7 feet long. Having poured the molten metal into a mould H, on one end of the pole, was walking backwards along a metal gangway when he misjudged a corner and fell into a casting hole. Surplus molten metal splashed up from the mould he was helping to carry and landed on his head. He claimed compensation for his injuries.

The issue in the case was whether the sand base of the foundry was a “floor”. The employer argued that it was not a floor because hole were dug in it on an ad hoc basis for the purpose of casting and that a separate system of metal walkways were the floor.

The court found that the sand base was the floor and the pit into which H fell was an unfenced opening. The employer was liable for breach of statutory duty. The base had many uses. Castings and other materials were stored on it. What were they standing on if not the floor?

Planks laid on high-level gantry

Tate v Swan Hunter & Wigham Richardson (1958)

T fell through an opening between planks laid on an 80 foot gantry. The planks were placed above steelwork so that workers could more easily work about. The planks were moveable and did not form a complete platform. Holes were left for ladders to emerge from below. T fell though a hole and suffered fatal injuries. His dependant mother claimed compensation for breach of statutory duty, alleging that the ladder hole was an opening in a floor which should have been fenced.

The court found that the planked area was not a “floor”. The extent of the word “floor” was very difficult to define but it did connote an area, within walls, which was indoors on which people walked or stood.

Slippery duckboard

Harper v Mander & Germain Ltd (1992)

H, an experienced marble polisher, slipped on a duckboard at a marble processing factory. The duckboard was slippery because paste had been allowed to accumulate on it. He claimed compensation for his injuries.

The Court of Appeal held that once it was shown that the accident had been caused by the accumulation of paste on the duckboard, the employer was then at first sight in breach of statutory duty, unless it could be shown that it was not reasonably practicable to keep the duckboard free at all times from a slippery surface.

DEFINITION OF PASSAGE

Passageway to canteen

Davies v De Havilland Aircraft Co Ltd (1950)

D was on his way from the shop floor to the works canteen when he slipped on the floor, fell among some machine tools and was injured. From the evidence it seemed that he had slipped in a patch of oily water held in a slight depression on the floor. Apart from this the floor was of sound construction. D claimed that the passageway was a means of access to his place of work in the wider sense and that it was unsafe. He clamed compensation from his employer.

It was argued on behalf of D that if he had been on his way from the canteen back to his workplace, there would be no doubt that the employer was liable. It was illogical to distinguish between going from a canteen rather than towards it when an injury could happen at the very same spot on the passageway.

The High Court did not accept this argument. It ruled that a canteen was not part of the workplace.

Outdoor road on factory premises

Thomson v Fisher & Ludlow Ltd (1968)

Ms Thornton, a cleaner, was walking to work along a roadway within factory premises at 6.45 a.m. when, in the half light, she stumbled on a coil of wire and injured herself. She clamed compensation from her employer.

The court found that a 30 foot wide roadway with a pavement running its full length could not reasonably be described as a passage. A minority of the judges stated that the road was a passage because it was a route by which people went on foot.

Definition of obstruction

Jenkins v Allied Ironfounders Ltd (1969)

J’s work involved moving freshly moulded cast iron pipes to another section of the factory for finishing. He would collect them from a pile and, together with a colleague, use a small vehicle to transport them. The pipes of the pile, having been only cast on the previous day, still had substantial amounts of solidified casting sand on them. Fins of surplus metal also protruded from the pipes. These fins sometimes fell off in the process of placing the pipes on the pile and then removing them again. They were usually collected and recycled into the smelting process.

After J had cleared one pile of castings he failed to notice that one of these fins, about six inches long, was half buried in the sand floor. He tripped on this and injured his back. He claimed compensation from his employer on the basis that the half-buried fin was an obstruction and it was reasonably practicable to have moved it.

The House of Lords ruled that an obstruction is something on a floor which has no business to be there and which is a source of risk to persons ordinarily using the floor. It does not include objects which are easily seen and put on the floor during the normal course of operations. A heap of components deliberately gathered in one place pending redistribution is not an obstruction. The word “obstruction” is clearly not intended to include easily visible objects properly put on the floor in the course of a proper system of work.

Screw on floor

Gillies v Glynwed Foundries (1977)

G was employed in a factory. His duties included moving loads on a barrow. The wheel of the barrow struck a discarded screw. The barrow swerved and G injured his back. He claimed compensation from his employer.

The claim failed. The employer had a system for cleaning the floor. Although the screw had been an obstruction, it would not have been reasonably practicable to take steps additional to the existing satisfactory system.

Bolt on floor: foreseeability

Paterson v Lothian Regional Council (1992)

P was employed by LRC as a youth training supervisor. He suffered an injury at work when he tripped over a door bolt, which had allegedly fallen from a door, and fell down a flight of steps. He claimed compensation from his employers for breach of statutory duty. At the trial, conflicting evidence was given as to whether the fall had been caused by the bolt and whether the bolt had fallen from the door. At first instance the judge ruled that he was satisfied that, on the balance of probabilities, it had fallen from the door and caused the injury. The bolt was an obstruction. The incident had been the fault of the employer for failing to take reasonable steps to make the bolt secure, despite knowing that it had fallen off on a number of previous occasions. The concept of “obstruction” involved an element of foreseeability.

Obstruction deliberately placed

Erskine v Falcon Catering Equipment Ltd (1997)

E, an employee of F, was injured when he tripped over pieces of wood in F’s store. The employer argued that the pieces of wood did not amount to an obstruction because they had been clearly visible and deliberately placed in the middle of the floor so as not to obstruct access to desks around the room. The needs of other employees had been duly considered. The Scottish court decided that the wood had been placed in the middle of the floor on occasions, but not as part of a system of work. There had been a clear risk to persons ordinarily using the floor. The wood had been an obstruction.

Properly maintained floor

Slippery surface

Latimer v AEC (1953)

L used a hand trolley to carry bins of handbrake components from one location in a factory to another. An exceptionally severe rainstorm had caused flooding in the factory. Floodwater covered a substantial part of the factory floor. This water became contaminated with cooling oil used on lathes in the factory. When the floodwater receded, a slippery oily film was left on the floor. The employer kept a quantity of sawdust for spillages but there was not enough to cover all the slippery area.

L was trying to lift a bin of components which weighed approximately 200 kg. He manoeuvred the platform part of the trolley under the bin, put his right foot on the trolley axle and began to tilt the bin. His foot slipped on the oily surface and the full weight of the trolley fell onto him. He claimed compensation for his injuries on the basis that the employer had failed to keep the floors properly maintained.

The House of Lords ruled as follows:

  • In order for a floor to be properly maintained, its structure must be sound and must not have deteriorated to an excessive degree. Short-term obstructions on the floor, or exceptional conditions of the surface due to some unexpected outside interference are not included.
  • A floor might be improperly maintained if it was so highly waxed as to be slippery, for here the waxed surface is a long-term condition. But temporary incursion onto the surface of a floor which was otherwise perfectly sound did not cause it to be improperly maintained.