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Employers’ health and safety obligations: risk assessments and reasonably practicable steps

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Employers owe a myriad of duties to employees, and in our blogs we often focus on the “pure” employment duties that arise from contractual provisions or employment legislation such as the Employment Rights Act 1996.

However, a duty that is easily overlooked, but can have serious (and potentially fatal) consequences if not properly considered, is the duty to ensure the health, safety and welfare of employees at work, as set out in the relevant legislation.

In this blog, we look at the decision in R v. W.M. Morrisons Plc, an appeal by the supermarket against health and safety convictions relating to an employee’s death, and consider key takeaways for employers when considering employees’ health and safety.

The legal framework

As a reminder, in England and Wales, compliance with health and safety legislation is enforced by the Health and Safety Executive (HSE) and local authorities. 

There is a framework of health and safety legislation, covering various acts and regulations. Key to this case were the Health and Safety at Work etc Act 1974 (HSWA 1974) and the Management of Health and Safety at Work Regulations 1999 (MHSWR 1999).

The HSWA 1974 sets out a broad duty on employers “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of its employees”. Failure to discharge this duty can lead to criminal prosecution either against individuals (for individual gros negligence manslaughter) or organisations (for corporate manslaughter).

The MHSWR 1999 sets out requirements on employers in respect of risk assessments, training and assistance (among other matters).

R v. W.M. Morrisons Plc

On 25 September 2014, Matthew Gunn (who worked as a shelf replenisher) fell from a staircase at Morrisons’ Ashchurch Road store in Tewkesbury. He later died from the traumatic head injury he sustained from this fall.

Matthew was 27 years old, had worked for Morrisons for 10 years and had suffered from epilepsy from the age of four. Morrisons were aware of Matthew’s disability.

Morrisons required employees (including Matthew) to leave their belongings in lockers at the top of a staircase. In June 2014 in a meeting between Matthew, his mother, the store personnel manager and the store occupational health officer, Matthew’s mother raised her concerns about the staircase and the risk of her son using the staircase multiple times a day and potentially having a seizure on the stairs. She raised the possibility of moving Matthew’s locker downstairs. It was agreed that the company's group health and safety officer would be contacted about moving the locker. The locker was not moved. A fall on the stairs to the locker later led to Matthew’s death.

In 2023, Morrisons supermarket was fined £3.5 million for failing to prevent the death of an employee and was convicted for three health and safety offences. In June 2024, Morrisons lost their appeal to overturn the ruling. 

Morrisons was convicted of three offences in the first instance:

  1. Failing to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees, contrary to section 2 of the HSWA 1974.
  2. Failing to carry out a suitable and sufficient assessment of the risks to the health and safety of employees, contrary to the MHSWR 1999.
  3. Failing to review any assessment of the risks to the health and safety of employees, contrary to the MHSWR 1999.

Morrisons also pleaded guilty to failing to supply the Tewkesbury Borough Council with requested information relating to the death of the employee.

Risk assessments

As set out above, employers are required to ensure employees’ safety “so far as is reasonably practicable” under s2 HSWA 1974. The term “reasonably practicable” means that the duty is qualified; a balance must be struck between the risks associated with a particular job and the time, cost and physical difficulty of taking measures to avoid or reduce those risks.

Employers need to conduct risk assessments to identify the risks and steps which could be taken to eliminate or reduce that risk to an acceptable level.

In practice, carrying out risk assessments for every individual employee would be onerous and expensive. Therefore, HSE guidance indicates that risk assessments should cover a range of hypothetical persons to understand the range of risks which different persons might be exposed to. These allow employers to take action to eliminate the hazards and control the risks. The “reasonably practical” qualification means that employers are not expected to eliminate all risks and instead a balancing act is required between the need to control risk and the money, time and effort associated with doing so.

However, the Court of Appeal found that, in this case, undertaking a person-specific risk assessment for Matthew was a reasonably practicable step. Employers owe duties to all of their employees, and that duty extends to any employees who are particularly at risk. Morrisons’ company procedures provided for person-specific risk assessments and were mandated for any employee with a disability; however, the court found that no such assessment had been carried out in relation to Matthew.

Even without such an assessment, the reasonably practicable step of moving Matthew’s locker downstairs was identified and yet not actioned. As a result, Morrisons failed in its duty to ensure his safety.

As an aside, Morrisons would also have had a duty to consider reasonable adjustments to Matthew, in light of his disability and its duties to him under the Equality Act 2010.

Key takeaways

Employers must undertake appropriate risk assessments, including on an individual basis, where appropriate. Any risks identified, must then be addressed, as far as is reasonably practicable, to ensure the protection of employees (and protect employers from subsequent criminal prosecutions).

Careful consideration should also be given to the question of what constitutes work activities. Morrisons sought to argue that putting belongings in a locker was not related to the activities of the employer; but the Court of Appeal disagreed, as Morrisons required employees to use the lockers provided.

In practice, when considering employees with disabilities, employers may undertake individual risk assessments as part of their assessment of any reasonable adjustments, to be made under the Equality Act. Doing so will ensure that adjustments are tailored to the specific needs of the employee, while also addressing the health and safety considerations set out above.

With thanks to Miranda Good, trainee in the Employment team.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2024 

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About the authors

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Emily Part

Senior Associate

Emily is an experienced employment and safeguarding lawyer known for her sharp legal acumen and client-focused approach. She advises employers and senior executives on a broad range of employment issues.

Emily is an experienced employment and safeguarding lawyer known for her sharp legal acumen and client-focused approach. She advises employers and senior executives on a broad range of employment issues.

Email Emily +44 (0)20 3375 7399

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