Regulation 12 of the Workplace (Health, Safety and
Welfare) Regulations 1992
Two recent cases are of interest, at issue in the first, a
Dingwall Sheriff court action, are the reasonably practicable steps
an employer must take to avoid liability under Regulation 12(3).
The second, an English Appeal Court decision, deals with the
application of and relationship between Regulations 12(1) and
(3).
MacKenzie v Co-operative Group (CWS) Ltd - Dingwall Sheriff
Court 17 April 2007
Mrs MacKenzie was employed by the Co-op as the supervisor of
their shop in Fortrose, Ross-shire. Her duties as supervisor
included opening up the shop first thing in the morning. She was
also required to assess the external conditions of the ground
surface in the area of the front door and to apply grit as
appropriate using grit kept in a bright yellow bin situated close
to the store's trolley bay. Mrs MacKenzie was aware that the Co-op
had a system in place for dealing with ice and had applied grit
herself prior to the accident. Nevertheless liability was still
found to attach to her employers in terms of Regulation 12 (3) of
the Workplace (Health, Safety and Welfare) Regulations 1992. The
Co-ops downfall was failing to give Mrs MacKenzie instruction or
training as to how she should protect herself from slipping while
applying the grit to the already icy surface. It was one thing to
expect her to be responsible for checking ground conditions and
spreading grit where necessary and quite another to give her no
advice or instruction as to how she should protect herself from
slipping on ice before the traffic route had been treated with
grit. The Sheriff said "The first person arriving at a workplace
was equally entitled to the protection of Regulation 12(3) as any
other employee arriving later in the day."
Employers will have to take heed of the Sheriff's words in this
case and perhaps re-think the training given to staff.
Ellis v Bristol City Council 2007 - EWCA Civ
685
Mrs Ellis fell in the corridor of the care home for the elderly
where she worked. She slipped on a pool of urine left by an
incontinent resident. The question for the Appeal Court was whether
the circumstances gave rise to an absolute obligation that the
construction of the floor of every workplace be suitable for the
purpose for which it is used in terms of Regulation 12(1) or an
obligation limited by reasonable practicability to keep the floor
free from substances which may cause a person to slip, trip or fall
in terms of Regulation 12(3).
The employers argued that the strict liability arising under
Regulation 12(1) concerned the construction of the floor. They said
transient conditions or hazards were to be dealt with under
Regulation 12(3) where the employer's duty was limited to doing
that which is reasonably practicable to keep the floor free of
substances likely to cause persons to slip.
On the other hand Mrs Ellis argued that if a smooth floor is
frequently and regularly slippery because of a substance that lies
upon it, albeit temporarily, the surface of the floor may properly
be said to be unsuitable, if the slipperiness is such as to give a
risk to the health and safety of those employees using it.
While recognizing that there was force in the employer's
argument that transient problems are governed by Regulation 12(3)
and not Regulation 12(1) Lord Justice Lloyd stated "I consider
that if the transient problems recur sufficiently often and
regularly, they may cease only to be the province of Regulation
12(3), and instead become the subject-matter of the absolute
obligation in Regulation 12(1). That would be the case with the
area surrounding a swimming pool. In my judgment it is also the
case with a corridor in a care home where the incontinence of
residents causes regular and frequent incidents of urine on the
floor of the corridor."
The upshot is that each case will have to be considered on its
own facts to allow a judgment to be made as to whether the
hazardous condition arises with sufficient frequency and regularity
as to make the floor 'unsuitable for its use'.
Contributed by Katharine Crawford