Landmark court ruling on Health and Safety at work

Tracey Kennedy v Cordia (Services) LLP: Lord McEwan: “Safety is to be levelled upwards”, finds for pursuer

Significant opinion likely to improve health and safety standards for thousands of workers across Scotland

Tracey Kennedy v Cordia (Services) LLP, with Tracey Kennedy being represented by Digby Brown Solicitors.

The Outer House, Court of Session issued its opinion on whether employees working outside in dangerous wintry conditions should be supplied with footwear to protect them against the risk of injury from slipping on ice, following a landmark case brought by Digby Brown LLP, leading Scottish personal injury lawyers.   The Court’s opinion, delivered by Lord McEwan, held that an employer was obliged to assess and identify reasonable risks to health, and where appropriate, provide over-shoe attachments to reduce the risk. 

The opinion could have far-reaching consequences and improve health and safety protections for thousands of peripatetic workers across Scotland.

Tracey Kennedy suffered a serious wrist injury while working for Cordia (Services) LLP as a home carer. She slipped on an icy path into a housing estate in Glasgow during the severe winter of 2010 as she made her way to the home of a terminally ill client to provide essential care services.  She could not re-arrange the visit, was not provided with any footwear by her employer, nor was she given guidance on what she should wear in wintry conditions to avoid her slipping. The footpath had not been gritted and was described as being like a sheet of glass below a layer of snow. 

Digby Brown argued that under the Personal Protective Equipment at Work Regulations 1992, Cordia had a duty to ensure that suitable PPE was provided to its employees if they could not control the risk of slipping on ice by other means which we were equally or more effective. In addition, the Management of Heath and Safety at Work Regulations 1999 requires an employer to make a suitable and sufficient assessment of the risks to the health and safety of its employees.

Lord McEwan rejected the argument advanced by the defender that Miss Kennedy could have made the decision not to go out that night because conditions were too hazardous. Instead, he accepted evidence that Miss Kennedy was providing an essential service to a vulnerable elderly member of the community who might otherwise have spent the night sitting in a chair, in pain, without her medication, noting that Miss Kennedy was “on an errand of mercy and in my view it cannot be said that she embarked on a risky course of action. I do not find her at all to blame….”

The court found that a relatively cheap over-shoe attachment was available and being used by other local authorities and employers. This would have provided grip when walking on ice and would have been effective in preventing the accident. Whilst recognising the far reaching implications of his ruling, his Lordship made clear that the health and safety of people working in dangerous conditions in Scotland should be paramount, noting that “everyone has to live and work through winters” and that fundamentally “Safety is to be levelled upwards.”

The value of damages to be awarded will be decided at a later date.

Following today’s decision, Miss Kennedy’s solicitor, Iona Brown from Digby Brown's Union Department, said:

“This is a significant result for my client and for all workers who work for the benefit of others in dangerous weather conditions. There are many workers throughout the country who work anti-social hours in treacherous weather for a low wage. They provide excellent care for the most vulnerable members of our society. Employers often think nothing of providing their employees with work wear that is little more than branding whilst baulking at paying a few pounds on equipment that could prevent serious injury.  

“Digby Brown is committed to providing backing and support to workers by pursuing cases which protect the right to be safe at work. The ruling in this case matters. It serves as a reminder to employers to give reasonable forethought to the dangers their employees encounter in the interests of their business, and is a timely warning of the consequences of their failure to do so.

"The ruling has particular significance given the changes that are due to be introduced on the 1st of October by the Enterprise and Regulatory Reform Act 2013. The Act removes civil liability for breach of various statutory health and safety regulations which until now impose liability on employers. By finding the defender liable under common law, employees in similar circumstances will continue to receive protection in the future"

Further information 

The Enterprise and Regulatory Reform Act will, from October 1st, remove employers' civil liability for health and safety regulatory breaches in the workplace. Digby Brown spoke out strongly against the act during its passage through the UK Parliament.