Duty of care
All employers owe a duty of care towards their employees, and to non-employees such as contractors under the Health and Safety at Work Etc Act 1974, and various Regulations made under it. This duty of care is extended towards visitors by the Occupiers’ Liability Act 1957. As we approach the coldest period of the winter, employers start wondering how they will be affected by the inclement weather, and how they will deal with it. Employers need to be aware of their obligations and be prepared to deal with it, to ensure that their staff are safe whilst on the premises as well as off-site. These duties fall into two categories;
1. From a health and safety perspective, the following duties apply under following Regulations;
- Sec 3(1) Management of Health and Safety at Work Regulations 1999. “Every employer shall make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work”.
- Sec 4(1) Personal Protective Equipment at Work Regulations 1992. “Every employer shall ensure that suitable PPE is provided to his employees who may be exposed to a risk to their health and safety”. PPE should always be a last resort when applying Risk Controls in line with the HSE’s Hierarchy of Control. Where there is residual risk still remaining, PPE should be looked at - an example of this could be providing staff with correct insulated clothing and safety boots. In the case of Kennedy v Cordia (2016), an employee slipped and fell on ice whilst conducting home visits in the course of her employment, walking on private paths and pavements under the control of someone else, should have been provided with protective footwear. The Supreme Court held that the employer was liable.
- Sec 12(3) Workplace (Health, Safety and Welfare) Regulations 1992. “So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route of a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall”.
2. The Occupiers’ Liability Act 1957 establishes certain duties on private individuals and commercial bodies. If you therefore have visitors or contractors working on your premises, Sec 2(2) stipulates;
- An occupier must take reasonable care in the circumstances.
- To take reasonable steps to ensure visitors and those present on the premises are safe for the purposes that they are invited or permitted by the occupier.
- Ensure that walkways and other areas likely to be used/frequented by visitors are free from the hazards caused by snow and ice. These areas can include pedestrian walkways, entrances and exits to/from a building, driveways and car-parks.
Guidance from HSE indicates that you must;
- Identify areas of your premises which are likely to be used by pedestrians, most likely to be affected by ice and snow. This includes areas mentioned above, but also commonly used shortcut routes, slopes and areas that are constantly in the shade or wet.
- Keep up to date with the latest weather advice.
- Take preventative action when freezing weather is forecasted. It’s a good idea to form a small group responsible for monitoring weather, ensure you have adequate supplies of gritting salt, so that you are prepared to act when necessary. Gritting should be carried out when frost, ice or snow is predicted, and when ground temperatures are likely to be at or below freezing. Proactive actions will minimise the risk of icy conditions forming and so reduce he risk of slips and falls.
- In extreme cases, consider covering walkways, and where it is not practicable, cordon off areas and divert pedestrians towards safer routes.
Be informed and prepared
Issuing and displaying warning signs is a good idea, but they are not always effective nor enough to discharge duties, remember the elimination and engineered controls should come first, so diverting people away from an affected area, placing barriers, installing surfaces with less of a slip risk. The signs may not be clear, they may not be understood, employees/visitors may not be able to read English, they may be obstructed by snow/cars/trees etc. Remember, in English law, you cannot exclude liability for death or personal injury. Warnings should be clear, unambiguous, prominent, highly visible and used in conjunction with positive actions.
(Source hse.gov.uk)
Sec 2(4)(a) OLA 57 states “In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that… (a) where damage is caused to a visitor of which he had been warned by the occupier, the warning is not, to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe”
3. Another area of law which may give rise to liability is where someone is affected by the actions of an individual or business whilst attempting to clear snow and ice from public land eg from a pavement in front of a house or shop.
Generally, an owner/occupier of private land is not under a specific duty to clear snow/ice from a public path or road. This is a duty of a local authority. Although at present, there is no statutory provision nor case law on the issue, there remains a risk that if someone is injured as a result of your actions, you could be held responsible. Indeed, a decade ago, a Snow Clearance Bill was proposed to provide immunity from civil action and prosecution but was not ratified by Parliament.
What should employers do?
Draw up a Winter Working/Adverse Weather Policy. This should deal with working in wintry condition, basic safety advice, gritting procedures, incident notification procedures and absence notification. Although it is the employees’ duty to attend work on time, it needs to be balanced with the employers’ duty of care to safeguard the employees’ safety. To address bad weather, travel and disruption issues, employers need to ensure that employees are aware how/who to communicate their absence, whether home or flexible working would be available, whether staff will be paid during their absence. Generally, employees are not entitled to be paid if they are unable to attend work, unless there is a contractual clause or there is a precedent. If however, they do manage to get into work but are later told to go home, employees are entitled to expect to be paid. Where feasible, an employer can consider allowing employees to work from home. With modern technology and the right equipment, they can work remotely from home. Adverse weather often results in school closures, and this creates child minding issues for staff. Getting correct advice and careful consideration needs to be given before issuing sanctions. Alternatively, the absence can be treated as authorised but unpaid leave. Equally, staff can use their annual leave entitlement to cover their absence. The policy will serve as a point of reference and avoid misunderstandings.
Further guidance can be found here on our other article: https://www.questcover.com/news/getting-prepared-for-the-adverse-weather-conditions/
Quest can provide you with the necessary practical and commercially focused advice to enable you to deal with the immediate situation. For the long-run, our HR Consultants can draft clauses and policies for your business. By having a flexible and understanding approach which is fair and consistent, you will enhance staff morale and productivity, as well as avoiding resentment and discrimination.
If you would like more information about the services that we offer mentioned above or would like further information in regards to this article please call us on 0333 240 7208 or contact us here.
