If snowdrifts are eight feet deep across the road most people would accept that employees might find it hard to get to work – especially those workers travelling to remote or isolated locations.
But what about those winter days when it is cold in the middle of a city?
A claim for damages heard in the Scottish courts last year appeared to suggest that employers were obliged to identify and risk assess when employees may need to walk on snow and ice on public footpaths and to provide non-slip footwear or perhaps over-grips (“YakTrax” or similar) if the assessment showed a significant risk of falling.
The case was heard as a breach of statutory duty (involving the Personal Protective Equipment Regulations) but could as easily have been founded in negligence. The case was widely seen as raising the standard of the ‘duty of care’ that employers owe their employees. Some concern was reported as to the extent of this raising of the bar. Would it now be considered an employer’s duty to provide winter tyres for employees driving their own cars in the cold season, for example?
Some businesses with many employees routinely walking the streets in all conditions as a main part of their job (Royal Mail postmen for example) DO provide anti slip footwear – but this case involved a care worker who was simply walking from her parked car to a client home. Her job was to provide care, not to walk the street (although clearly to gain access to the client she needed to walk on public footpaths).
The appeal court overturned the original award of damages in September this year. One of the appeal judges clarified that “Fundamentally, the risk … was an ordinary risk arising in a public place from the ordinary facts of life…” Another could not see how the employers were under a duty to “determine exactly what their competent adult employees should wear on their feet when negotiating the streets of Glasgow.” And went on:- "Adults in Scotland can be expected to have experience of negotiating snow and ice in an urban environment and in choosing footwear which will help them to do so."
If the original award had been correct it could have meant that employers were obliged to monitor the weather and street conditions at all places where their employees were likely to walk, assess the risk of slipping, instruct employees what to wear on their feet, provide anti slip devices and monitor what they were wearing.
Such an onerous duty is now recognised as being beyond what it may be considered reasonable (or reasonably practicable) for most employers to do. The appeal decision ties in with a number of other recent cases where it seems the courts are willing to recognise the law does NOT oblige employers to ‘featherbed’ everyone and everything. Employers should be able to breathe a sigh of relief as yet another victory seems to have been won for common sense. Yes, we need to identify work-related risks and record the significant findings of our assessments, but we do not need to assess the trivial or mundane issues that everyone faces as part of daily life in this country.
In a similar vein, other countries such as Australia have seen claims for damages where the employees alleged that skin cancer was caused by an employer failing to provide long-sleeved shirts to protect from summer sun exposure. In the light of this appeal court decision it seems unlikely such a claim would succeed in the UK, although, of course, it might be argued that sunburn is not an ‘everyday life’ risk in Scotland!