• Robert Spicer

New Health and Safety Prosecution

Health and safety regulations

The recent Scottish case of McKeown v Inverclyde Council (2013) has illustrated the interaction between potentially overlapping sets of health and safety regulations.

The facts, in summary, were that in November 2010 M, a school janitor employed by IC, suffered injuries to his back when he slipped on ice on the top of a fire escape as he was collecting litter and helping to supervise pupils during the morning break. He suffered continuing pain in his back and leg and was unable to return to work as a janitor.

M had been asked to cover for a permanent janitor. He had continued his duties, which included salting paths and playgrounds which were covered in ice and snow. M stated that he did not know of any procedure set out by IC for the work. He proceeded as he had always done and salted the paths and footways, working his way around the school building. His routine was to prioritise the areas which made it safe for staff and pupils to enter the school in the morning. M claimed compensation from IC, alleging breaches of regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (WHSWR) and regulation 4 of the Personal Protective Equipment at Work Regulations 1992 (PPE Regs).

Regulation 5 of WHSWR states, in summary, that workplaces must be maintained in an efficient state, in efficient working order and in good repair.

Regulation 12 of WHSWR states, in outline, that workplace floors must be, so far as is reasonably practicable, kept free from substances likely to cause slips, trips or falls.

Regulation 4 of the PPE Regs states, in summary, that except where risks are adequately controlled by other means, employers must provide suitable PPE to employees who may be exposed to those risks.

The decision of the Scottish Outer House was as follows:

1. On the balance of probabilities, M’s version of events was accepted.

2. Ice had been present on the fire escape. IC was in breach of regulation 12 of WHSWR unless it could be shown that it had not been reasonably practicable to keep the fire escape free from ice.

3. IC had devised a system where janitors were instructed to treat pathways leading to the school as a priority and then to treat areas such as fire escapes. It had failed to institute or maintain that system. If the head teacher of the school had been aware of the system, she would have given the fire escapes higher priority. The fire escapes were safety exits.

4. IC should have had a system whereby janitors were instructed to use a scoop which was provided. This would have increased the melting of ice by salt over the whole steps.

5. Regulation 5 of WHSWR did not apply to transient conditions, for example ice.

6. IC was not liable under regulation 4 of the PPE regulations where he was supplied with safety boots and there was no evidence as to the type of the boots’ soles or as to whether metal grips would have provided better traction.

7. M had not been contributorily negligent. He applied slat using his own system without any instruction or training by IC. He had been under pressure of time and it was understandable that some areas were not effectively treated.

8. Compensation of £30,000 was awarded.

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