Good afternoon all, 

Following the article regarding 'Morrisons’ £3.5m fine is ‘a warning to all employers’, says council | IOSH Magazine' I was wondering whether any organisations or companies have been conducting personal risk assessments for new or existing staff? We currently use health declarations for all new starters via our Occupational Health contract (retained for the during of employment), reasonable adjustments via Occ Health or GP recommendations, undertake DSE assessments for all staff and write PEEPs for anyone requiring assistance during evacuations, but should we also be conducting personal risk assessments for known health conditions? If so, I think linking in with our Occ Health/HR for health information and risk assessing each individual will be required. 

Best wishes

At risk of pulling the thread off-topic - does anyone have more detail of this case?

I note that the council said "Morrisons failed to put in place a number of simple measures which could have kept Matthew safe at work", but that the death appears to have been from a fall on stairs that MAY have been a result of an epileptic seizure and the post mortem said that couldn't be determined with any certainty.  However it is noted that that adjustments had been made by Morrisons to ensure he had a safe working environment.

I'm left feeling there must be more to it than the article contains - Morrisons report that they had processes and it is apparently accepted that they did make adjustmnets, and if that's teh whole of it fining them £3.5M because an employee died on site and it MAY have been due to a health issue that Morrison knew about rasies questions in my mind.

Plus, it's taken more than eight years to get to this point.

Do I need to ban anyone from using the stairs in case they may have a health issue that may result in a fall and their death? Do we need  health screening and a risk assessment prior to approving someone using a staircase? I feel like soem facts are missing...

Its always difficult to get the full details from reports as often the reporters dont realy undertsand the legislation. Like Peter i worry that if the report is accurate that the "offence" was having the locker on the 1st floor and not ground floor are we saying that all kinds of what i will call "health" issues (for want of a better term) will mean that workers have to be restricted to ground floor work areas only.

6 years does appear a long time to get to court - as an enforcement officer the longest time on 1 of my cases was 4 years from the event to the prosecution. This was partly due to the police takeing 18 months before dropping a corporate manslaughter case, before we could carry out our investigation in detail (not the way its sopposed to work but the CPS dont get section 18) and then waiting for the inquest (which we were hoping would get the police to reconsider) and then crown court avilability. 

What was reported though is that the court determined that there was more that Morrisons could have done which was reasonable and practicable.

They could have moved his locker downstairs. They could have allowed him to dine in the public restaurant at a discounted rate. They could have conducted a risk assessment for him indivually to determine the risks.

They didn't do any of those relatively resonable things. If they had, he wouldn't have been as likely to be on the stairs when his seizure kicked in, which would have meant he wouldn't have fallen down the stairs, and wouldn't have fallen into a coma finally dying.

It's a case where everyone can learn something and take additional steps to protect workers. I think the result is harsh, there are companies out there which still deliberately act unsafely that put their staff in immediate risk. This was an accident that nobody envisioned - but now everyone decent will sit up and take steps to ensure it doesn't happen on their watch.

GazNicki

You can't appropriately split "reasonably practicable" into two separate words. The first word is an adverb that qualifies the adjective that follows.

So, there is plenty of case law on what is or is not "practicable" - in simple terms what is technically achievable.

"Reasonably practicable" is a less stringent qualfication, where it is necessary to balance the reduction in risk that would be achieved by putting a mitigation in place against the "time, money and effort" aka cost required.

Then depending on your choice of case law (1949 v 1954) you have to decide whether the cost is "grossly disproportionate" or simply "disproportionate".

Part of that balancing act would include taking into account the downsides of any mitigation which might include introducing a new risk, or, perhaps putting people at a disadvantage, or in other circumstances adversely impacting heritage, the environment etc etc etc.

So, in my view it is entirely appropriate to consider the potential breach of equalities legislation in deciding what is or is not "reasonably practicable".

As regards causation in this particular case, the reportage includes the assertion that the victim did NOT fall down the stairs but rather fall over the handrailing. 

Assuming that the store is of relatively modern construction it will have been constructed to be 1100mm (or more) above the 1st Floor surface, with intermediate protection between top rail and floor level (all designed so as to make it somewhat difficult to climb and THEN fall over). All set out in one of the "Approved Documents" that support Building Regulations in England.

I can't think of a rational explanation as to why one would construct this edge protection to a different standard simply because one person is prone to epileptic seizures.

You would build the edge protection higher if those at risk might be e.g. cattle on a bridge crossing a road. See "DMRB".

We will probably never know the exact reasons why the Jury found Morrisons guilty on three charges as what is said in the Jury is supposed to be kept in the Jury room with a juror committing an offence if they take what is in the jury room and announce it beyond. (I've been there - fine for me to say that we found the two defendants not guilty of the charges of manslaughter against them, fine for me to point others to the media coverage, which might give a very good clue to what we the jurors thought, but not fine for me to explain WHY we came to our decision).

However, on the assumption that the Jury concluded that it was reasonably practicable for the victim's locker to be moved back to the Ground Floor, then it follows that whatever "personal" risk assessment Morrisons had done would fail if it did not include for such "reasonable adjustment".

BUT, this case is NOT an authoritative judgment - it has not been heard in an Appeal Court and we shouldn't read too much into it. May be the Jury came to an inappropriate decision. On the face of it, it seems easy to conclude that the victim's locker could have been put back on the Ground Floor, but we don't know what changes in store layout were made to include moving employees' lockers UPSTAIRS - possibly it was not practical (I am deliberately avoiding the words "reasonably practicable" which is the test) to put the locker back on the Ground Floor.

Quite possibly the defence was not as robust as it might have been. It's not uncommon in my experience for the lawyers working on the defence of a health and safety prosecution to be outside their comfort zone.