Why must employers assess the characteristics of employees?

The need for employers to ensure that a place of work is safe requires employers to take into account an employee’s capabilities as regards health and safety which includes a duty to assess risks and reduce them to the lowest level reasonably practicable.

This duty was brought into sharp focus when, on 22 May 2024, the Court of Appeal unanimously rejected a petition brought by Wm Morrisons PLC who were seeking permission to appeal a conviction on three counts of breaching health and safety laws.

Wm Morrisons were convicted of three offences and fined £3.5 million in February 2023 after a three week jury trial in Cirencester following the death of an employee, Matthew Gunn, on 7 October 2014 — a matter of weeks following an incident at their Tewkesbury store on 25 September 2014.

Background 

Matthew was a known epileptic who had worked for Wm Morrisons since 2004. In order to access both his locker and the staff canteen, he used a staircase to the first floor. Although there were no eye witnesses to the incident, Matthew was found unconscious with severe injuries at the foot of the stairwell and he is believed to have suffered a seizure and fallen over the banister rail.

An inquest held in 2016 found his death to have been “accidental”. It held that Morrisons had missed opportunities to keep Matthew safe and that there was "an absence of a structured process and ownership in relation to managing a person with epilepsy, a lack of communication, no personal risk assessment or monitoring and insufficient reporting, allied to missed opportunities which may have contributed to his death”.

The court in Cirencester in 2023 had heard that Matthew’s mother had warned of the risk to her son, a known epileptic, and that three and a half months before the fall, during a meeting with both the store manager and occupational health officer, she had requested that Matthew’s locker be moved to the ground floor and he be granted a discount to access the customer café situated on the ground floor. She had understood that both requests had been agreed, though these were not actioned before the incident in September 2014.

The prosecution brought by Tewkesbury Borough Council adduced evidence that Morrisons were fully aware of Matthew’s health and had records of him falling on the stairs due to his epilepsy.

Wm Morrisons argued that a lift was available as an alternative method of reaching the first floor and warned the court that to find a fixed permanent staircase amounted to a material health and safety risk would have enormous ramifications. They were convicted of three offences which included: failing to ensure the health, safety and welfare of employees, failing to carry out a suitable and sufficient risk assessment of the risks to an employee who had epilepsy and failing to review the risk to which an employee with epilepsy might be exposed.

Morrisons admitted a fourth charge of failing to supply the council with requested information. The judge placed the offences in the highest culpability of harm. The fine — which is directly linked to the financial turnover of Wm Morrisons — was set at £3.5 million.

The Court of Appeal, in refusing permission to appeal, accepted that the staircase did not present a risk for all members of staff at the store but said that Morrisons ought to have moved the locker downstairs.

Commentary 

The prosecution highlights the need for employers to carry out bespoke, individual risk assessments for employees with known medical conditions which could pose a risk either to themselves or others. A “one size fits all” approach to the assessment of risk may no longer be appropriate.

The Management Regulations (1999) (regulation 13) require employers to take into account an employee’s capabilities in any tasks entrusted to them as regards health and safety. Additionally, they have an obligation (regulation 6) to monitor the health and welfare of their employees.

Whilst the convictions may seem ostensibly harsh — in the context of a lift available as an alternative means of access and a staircase with no design or structural defect — the factual matrix in this case demonstrated several issues: that Morrisons were fully aware of Mr Gunn’s epilepsy, that he had previously suffered falls on the staircase and that the cost of re-siting his locker to the ground floor would have been negligible and would have prevented the risk from eventuating. 

Both the warning expressed by Matthew’s mother and Morrisons failure to carry out the “agreed” action undoubtedly drove the judge’s conclusions that these circumstances fell into the bracket of the highest culpability.