Snow and Ice: Employers' and Occupiers' Obligations

Background

Slips and trips account for many of the accidents which occur in workplaces. In winter the risk of employees and third parties slipping and falling increases due to ice and snow. It is important that good practices are adopted to prevent slips and falls on business premises. Employers and occupiers are under a duty to minimise the risk of slips and trips but what are their obligations?

The 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 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.”

This places the employer under a duty to take all reasonably practicable steps to keep the workplace free from snow and ice. The code of practice dealing with the Workplace (Health, Safety and Welfare) Regulations, approved by the Health and Safety Commission, states:

“arrangements should be made to minimise risk from the snow and ice. That might involve gritting, snow clearing and closure of some routes, particularly outside stairs, ladders and walkways on roofs”

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This provision refers to minimising risks, not eliminating them entirely. However, employers must show that they took all reasonably practicable steps to keep their premises free from snow and ice.

Occupiers Liability

A member of the public may be able to raise a claim under the Occupiers’ Liability (Scotland) Act 1960 if they slip and fall in an area, such as a car park or walkway. This Act places a duty upon occupiers to take care (as is reasonable) in all circumstances to ensure that persons will not suffer injury or damage due to the state of the premises, or anything done or omitted to be done on them.

Occupiers therefore have a duty to take reasonable steps to deal with snow and ice and give warnings about the dangers of such hazards.

What is reasonable and what are all reasonably practicable steps?

Unfortunately, there is no legal definitive answer to this question. The duty is not absolute but it is a high test. Each case will be considered on an individual basis by the judge tasked with that particular case.

The courts have however, provided some guidance in this area. Employers must consider the risk presented to their employees and members of the public visiting their premises and, on the other hand, the cost to the business of taking necessary precautions to remove the risk. The case law suggests that precautions must be taken unless the cost, in terms of time, effort and expense, is grossly disproportionate to the risk involved.

If slips and falls are to be prevented, then employers must carefully consider the risks of snow and ice to their employees and third parties visiting their premises. Employers must then take all reasonably practicable steps to minimise the risk from snow and ice in their individual premises. These risks should be taken seriously and evidence of the steps taken to reduce the risk must be documented.

Personal Protective Equipment Regulations 2002

Increasingly we are seeing claims brought under the Personal Protective Equipment Regulations as pursuers have had some recent success bringing claims under these regulations. The regulations require that:

“every employer shall ensure the personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.”.

Employers must consider whether it is necessary to provide employees with personal protective equipment to protect them from the risk of falls on snow or ice. The recent case of Tracey Kennedy v Cordia (Services) LLP determined that protective footwear or form of shoe “add on” such as Yaktrax should have been provided to a care worker who was required to visit patients in their homes during the icy winter of 2010. This provision is particularly relevant where employees are required to work outside in areas which are outwith their employers’ control. As well as providing protective footwear or a shoe “add on” employers should monitor the use of appropriate footwear.

This recent case was the first decision in Scotland in which a claim for a fall on ice was successfully brought under the Personal Protective Equipment Regulations. It is unclear whether the judge would have come to a different decision if the requirement to walk outside had not been an integral part of the pursuer’s employment. There is no case law upon whether protective footwear or a shoe “add on” is necessary for employees who work indoors. Employers may wish to consider whether they can reasonably make such equipment available for staff or whether the other measures they have in place to deal with snow and ice adequately control the risk of a slip or fall.

Assisting the Defence of Claims

In order to defend allegations that an employer has not taken all reasonably practicable steps to prevent slips and falls, the employer will need to evidence the disciplines of recognising hazards, controlling the degree of risk relating to hazards, monitoring that controls are being effective plus investigating any incident. If this can be evidenced then the employer may be able to persuade the court that all reasonably practicable steps had been taken to minimise the risk of snow and ice in the area of the accident.

The following documentation, whilst not an exhaustive list, would be helpful in demonstrating to the court that the employer had taken reasonably practicable steps:

Each situation is individual and each case will turn on its own merits. There is no definitive answer to what is reasonable and what constitutes practical. Legal advice cannot be given on the chances of successfully defending a claim until individual circumstances are considered. However, this article is designed to provide you with a general guide to the law and the documentation you will be asked to provide.