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Yak traks and snow socks for all??

BY Steve Ashton
Health & Safety
BG Orange

A care worker who slipped on ice (on the public pavement) whilst on the way to a client's home has won a claim for damages against her employers.  The case raises some very interesting and difficult-to-answer questions if media reports are accurate.

The repercussions could be very wide ranging indeed. 

Apparently the judge decided the employer should have assessed the risk (of falls on ice on the public pavement) and concluded that it would have been reasonable for the employer to reduce the risks by providing 'PPE' in the form of 'cheap overshoe attachments'.  Whilst some employers do offer 'yaktraks' or similar - this has usually been seen as 'goodwill' gesture rather than any nod towards compliance with health and safety legislation or common law duty of care. 

The case has alarmed many in the health and safety field, who believed that risks associated with 'life' (walking to and from work, driving to and from work - even (to some extent) driving whilst at work were excluded from the employer duty to assess and control under health and safety law.  Lord McEwan said that the health and safety of people working in dangerous conditions in Scotland should be paramount, noting that "everyone has to live and work through winters" and that fundamentally "safety is to be levelled upwards".  The reasoning of the judge is not entirely clear and we cannot now be certain just where an employer needs to draw the lines.  

So what next do employers need to do as a result?  Could it be argued that all fleet cars (or personal cars used for work....) must now be supplied with a set of winter tyres (and snow chains or snow socks)?  Does every outdoor worker in the rain have to be supplied with wellington boots because their sandals will allow feet to get wet? 

To confuse matters even further, following the judgment, the pursuer's solicitor is reported as having claimed that: "The ruling has particular significance given the changes that are due to be introduced on 1st October by the Enterprise and Regulatory Reform Act 2013. The Act removes civil liability for breach of various statutory health and safety regulations which until now imposed liability on employers.  By finding the defender liable under common law, employees in similar circumstances will continue to receive protection in the future." 

But that seems to be an odd interpretation when the claim was made on allegations of breach of statutory duty - which will no longer be possible once the Act comes into force.  And, to the best of my knowledge - no commencement order has yet been made for that particular section of the Act - so suggesting October 1st seems at best to be wishful thinking.

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