26 Jan 2018

When the temperature drops below freezing it can create a host of issues for UK businesses. Problems with travel may disrupt your workforce, suppliers or business operations itself. However, another risk may present itself, as premises become icy and dangerous risking injury to staff and the general public alike. It follows that businesses will need to be alive to their responsibilities in order to avoid injury claims at this time of year. 

Employees on your premises

The duty to employees is set out in Regulation 12(3) Workplace (Health, Safety and Welfare) Regulations 1992, which states:

"so far as reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall." 

The key feature of this section is the notion of what is "reasonably practicable?" This rather opaque notion offers little practical guidance towards the steps that businesses are to take to protect their employees from the dangers arising from icy premises. However, there is good reason for this. Enterprises of varying sizes have differing resources. A small high street sole trader will not have the same available means to protect against the build-up of snow and ice on their controlled premises as a large national, or multi-national company. 

Subsequent case law has provided further guidance. As with all injury claims the courts will want to see evidence that a business is alive to the risks presented by a hazard, in this instance the presence of ice and snow on their premises. In all instances businesses should conduct and record a risk assessment noting the impact of adverse weather conditions upon their business. In addition to this, a strategy for dealing with the risks presented is necessary. This involves determining which routes/areas are necessary to provide access to a business, ensuring that a system exists to grit, or otherwise clear, the primary walkways and taking measures to warn of areas which remain slippery, or even restricting access to non-essential parts of the premises which may prove dangerous due to the build-up of ice. 

Off-site employees

Businesses also owe a duty of care to employees who venture outside their premises in their line of work. Local authorities have a responsibility, under S41 (1A) Highways Act 1980, to ensure that "so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice". Local authorities will need to make judgement calls regarding where to apply their resources, and this may lead to employees venturing onto potentially icy and dangerous walkways and roads, where injuries may occur.

The courts have, historically, been very understanding with regards to the difficulties faced by local authorities, who will have large areas to protect and limited resources to enact any measures to safeguard the public. It is often the case that areas of low footfall are left untreated, which may be deemed sufficient by the court. In some instances a local authority may have gritted a road or walkway in the early hours, only to find that a few hours later the area has experienced a build-up of snow and ice, leading to the area becoming unsafe. However, as in Pace v Swansea City and County Council (2007) the local authority's actions were deemed sufficient in the circumstances. 

In recent months the case of Cook v Swansea City Council [2017] EWCA Civ 2142 found that the defendant had a suitable system in place, whereby they would only grit one of their public car parks when they were notified, by a member of the public, about potentially dangerous conditions at that car park - a decision that would have, invariably, been less favourable had the defendant not been a local authority. 

It follows that if an employee, in the course of their employment, slips on ice on a local authority controlled public walkway, the employer, rather than the local authority, could be found liable.

In determining the steps to safeguard their offsite employees, employers should be mindful of the Scottish case of Kennedy v Cordia (Services) LLP [2016] UKSC 6. Here the courts considered the steps the employer omitted to take in safeguarding their employee, who slipped on a public path whilst visiting a client. In this instance the Supreme Court held that the employer was negligent in failing to adequately assess the risks presented by adverse weather conditions or to provide suitable protective equipment, specifically anti-slip attachments for employees' footwear, which were available at modest cost.  

Protecting the public

Businesses should also consider the risks presented by icy premises to members of the public. Such a duty, known as the "common duty of care", is defined in section 2 Occupiers' Liability Act 1957 as:

"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there". 

You may note a number of similarities between the requirements set out in the Occupiers' Liability Act and those set out in Regulation 12(3) Workplace (Health, Safety and Welfare) Regulations 1992, dealt with at the outset of this article. It follows that a well formulated and executed adverse weather strategy will enable a business to discharge its duty to lawful visitors and avoid potential injury claims.

Our advice

The next big freeze may soon be upon us, so be prepared. Check your existing risk assessments for sections dealing with adverse weather conditions and consider whether these are up to date and sufficiently take into account the way your business functions. In particular:

  • be alive to the risks presented by common walkways, car parks and to offsite employees
  • be vigilant, it is your responsibility to know when ice and snow are forecast
  • consider whether high risk areas are well illuminated and kept clear of standing water
  • ensure you have a system for dealing with adverse weather, and be sure you have the resources to grit areas of high footfall, that relevant staff are trained on the adverse weather strategy and the process for gritting your premises
  • use signs, where necessary, to warn against slipping and cordon off areas, such as common shortcuts, which may become unsafe
  • provide protective equipment to avoid employees slipping on local authority controlled areas where relevant. 

Even where these steps are taken there remains an element of risk arising from adverse weather conditions. Your prospects of defending claims of this nature are governed by your ability to evidence your awareness of the risk and show that reasonable steps have been taken to combat it. Gather risk assessments, strategy documents and records to show where, when and by whom the strategy has been implemented. Take statements from witnesses and get a detailed account of events from the injured party if possible.

The risk of an accident caused by icy conditions cannot be eliminated, but the risk of a negligence claim can certainly be reduced by adequate preparation and precautions.