• Robert Spicer

Landmark Supreme Court health and safety decision: Kennedy v Cordia (Services) LLP

Personal protective equipment

Case Kennedy v Cordia (Services) LLP [2016] ICR 325, Supreme Court

Statute reference Personal Protective Equipment at Work Regulations 1992 (PPE), reg.4; Management of Health and Safety at Work Regulations 1999 (MHSWR), reg.3

Facts C was employed in Scotland by CS as a carer. She slipped and fell on an icy path leading to a client’s house and injured her wrist. She claimed compensation from CS on the following grounds:

  • Their assessment of the risk of carers falling on snow or ice had been inadequate, in breach of MHSWR.

  • They had failed to ensure that suitable PPE was provided or that the risk was adequately controlled by other means which were equally or more effective, in breach of the PPE regulations.

  • Breach of the common law duty of care.

CS had carried out a risk assessment which assessed the risk of slipping or falling in inclement weather as tolerable. Despite a history of similar incidents, CS had not considered providing PPE, for example anti-slip footwear attachments, and had advised carers to wear appropriate footwear. Evidence was given by a consulting engineer with qualifications and experience in this area.

At first instance, the claim succeeded. On appeal, this decision was reversed. The Court of Session found as follows:

  • The evidence of the engineer had been impermissibly admitted.

  • The PPE regulations did not impose a duty on employers to take precautionary measures.

  • The MHSWR regulations were concerned only with the task performed by the employee and not with K’s journey to the client’s home.

  • The risk of slipping had been adequately controlled by CS’s instructions.

K appealed to the Supreme Court which allowed the appeal and made the following points:

  • The health and safety practice of employers could properly be the subject of expert evidence. K’s expert gave evidence of factual matters, which was admissible because it was relevant and might assist a judge.

  • An employee was “at work” for the purposes of the PPE regulations and the MHSWR regulations throughout the time when she was in the course of her employment. This included travelling to a client’s home.

  • The risk of K’s slipping on snow and ice was obvious. It was known to CS and could not be avoided. It therefore had to be evaluated and CS had given no consideration to the possibility of individual protective measures. CS was therefore in breach of the PPE regulations and the MHSWR regulations.

K had been obliged to visit clients in their homes, regardless of hazardous conditions underfoot. At common law an employer was bound to take reasonable care for the safety of its employers. If CS had made proper inquiries into the risk of employees slipping or falling, it would have learned that attachments were readily available which were effective in reducing that risk. CS had been negligent in failing to provide such attachments.

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