Update on Employers Liability Law 2010 Simon Allen Russell Jones & Walker. Sheffield

Risk Assessment A “blueprint for action” Smith LJ “The purpose … is to ensure that what may appear to be obvious is, in truth, obvious.” Latham LJ

Photo of 3 men and man on plank

TRAINING 17 hours of hands-on training to use a lawnmower McLellan v Dundee CC 2009

MANUAL HANDLING “… any transporting or supporting of a load (lifting, putting down, pushing, pulling, conveying or moving) by hand or bodily force.” Reg 2 MHOR ‘92

SLIPPING/TRIPPING Reg 12 Workplace Regs 1992 “every floor … and the surface … shall be of a construction such that the floor … is suitable for the purpose for which it is used.” Strict liability or reasonable practicability?

Can the substance on the floor make the floor unsuitable? Ellis v Bristol CC 2007 “… conditions which, although not a permanent feature of the floor, occurred frequently, … and made the floor unsafe.”

STRESS Legal Principles “Where it is reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of stress and the pressures of his work, the employer is under a duty of care to provide a safe system of work …” = Foreseeability is the key!

Sutherland v Hatton CA 2002 (i)Claimant in charge of own mental health. (ii)Claimant can gauge whether causing him distress. (iii)Claimant can then do something about it.

Protection from Harrassment Act 1997 N.B. “there is no requirement that harm, or even alarm or distress, be actually foreseeable although in most cases it would be” Baroness Hale Majrowski v Guy’s and St T homas’ NHS Trust HOL 12/7/2006

Harassment? “alarming a person or causing her distress” “ordinary badinage of life” “genuinely offensive and unacceptable behaviour” “conduct which is unattractive, even unreasonable” “conduct which is oppressive and unacceptable”

“harassment is, however, a word which has a meaning which is generally understood.” Lord Phillips: Thomas v Newsgroup Newspapers Ltd 2002 EMLR 78

Conn v Council of the City of Sunderland 2007 Incident 1-the broken window Incident 2-“a good hiding” -“a little sh_t” = “Criminal” conduct? “What on earth is the world coming to …”

The last word … Veakins v Kier Islington 2009 “oppressive and unacceptable conduct.” Morris Kay LJ

PROTECTIVE EQUIPMENT The hole in the boot and the House of Lords.

WORK EQUIPMENT Smith v Northamptonshire CC 1)The ramp was installed by others. 2)It had a permanence. 3)It was used most of the time by people other than the council’s employees. 4)The council had no ability to “maintain” it. 5)In the ordinary parlance, the ramp was part of the patient’s premises. 1)The employer knew of the presence of the ramp. 2)The employer was able to inspect it and, in fact, had done so. 3)The employer could have prevented the employee from using it. 4)The employer could have provided their own ramp – the key!