When is an activity work related? The Court of Appeal in the case of R v. W.M. Morrisons Plc considered what constitutes a relevant risk, materially related to the activities of the employer, such that duties imposed by health and safety legislation apply. This case is also a stark reminder to employers of the need to follow up and implement agreed and reasonably practicable control measures to ensure the health and safety of its workers, especially those with known medical conditions and associated risks.
W.M. Morrisons Plc was found guilty by a jury of three health and safety offences at Gloucester Crown Court in 2023. These were as follows:
- Charge 1: Failing to ensure, so far as is reasonably practicable, the health, safety and welfare of employees contrary to S.2 of the Health & Safety at Work etc. Act 1974 (HSWA);
- Charge 2: Failing to carry out a suitable and sufficient assessment of the risks to the health and safety of employees, contrary to the Management of Health & Safety at Work Regulations 1999; and
- Charge 3: Failing to review any assessment of the risks to the health and safety of employees, contrary to the Management of Health and Safety at Work Regulations 1999.
W.M. Morrisons Plc were fined £3.5 million.
Case Background
This case involved the death of an employee, Matthew Gunn, who had a history of epilepsy with seizures. Matthew worked as a shelf replenisher in the grocery section. The company was made aware of Matthew's condition.
Company policy required staff to leave personal belongings in a locker, which was on the first floor, accessible by a staircase.
At a meeting with the store's personnel manager and occupational health officer, Matthew's mother raised her concerns about the stairs and the risk to her son should he have a seizure whilst on the stairs. The occupational health officer shared those concerns and suggested that Matthew's locker be moved to the ground floor. Concerns had already been raised by Matthew's colleagues who had found him on the stairs having had a seizure on more than one previous occasion.
The outcome of the meeting was that the company's group health and safety officer would be contacted about moving the locker. Whether any contact was made was not established, but for whatever reason, the locker was not moved.
In September 2014, Matthew fell from the stairs onto the floor of the stairwell and died after sustaining serious head injuries. The reasonable inference from the evidence was that he had a seizure which caused him to fall.
The Health and Safety Executive (HSE), prosecuting on behalf of the Crown, argued at trial that Matthew was put at risk because he was required to use the stairs in order to get to his locker. A reasonably practicable step which could have been taken was to relocate Matthew's locker to the ground floor. Additionally, the HSE were of the view that there should have been a person specific risk assessment carried out and reviewed regularly. Company procedures provided for person specific risk assessments for any employee with a disability, however, no such risk assessment was produced for Matthew.
The defence case was that the risk was non work related and the company had no additional duty beyond what was owed to all employees, i.e. to make the stairs safe for ordinary use. It was also argued that the Management of Health and Safety at Work Regulations do not require person specific risk assessments. As such, a No Case to Answer submission was raised by the defence.
The trial judge took the view that there was a case to answer and the jury convicted the company on all three charges.
Court of Appeal Decision
Morisons appealed the conviction on the basis that the trial judge made an error in both allowing the case to go to the jury, and also in directing the jury on the point of relevant risks for the purposes of health and safety legislation.
The Court of Appeal dismissed Morrison's appeal. A relevant risk is one that is materially related to the activities of the employer. The company had a rule which required Matthew to use the stairs. Going to his locker was a work activity. The requirement to use the staircase created a material risk to the health and safety of Matthew. There was no question that reasonably practicable steps could have been taken, but were not.
The Court of Appeal also highlighted that the duty on employers under the HSWA 1974 extends to all employees, and that if one or more employees are at risk due to the way in which the employer operates, then the question of reasonably practicable steps has to be considered.
Our national regulatory team advises organisations across a diverse range of sectors on compliance with their statutory health and safety, product safety and environmental obligations, and help them to manage their response to major incidents, and to protect their interests, particularly when faced with the threat of investigation or prosecution by the regulatory authorities. We also offer a wide range of training sessions and workshops to help organisations with proactively identifying and addressing the health and safety risks arising from their work activities. For more information or advice, please contact one of our specialist lawyers.
