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YJHR  
#1 Posted : 28 March 2023 11:27:52(UTC)
Rank: Forum user
YJHR

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

GazNicki2504  
#2 Posted : 28 March 2023 11:41:20(UTC)
Rank: Forum user
GazNicki2504

Hi. Yes, I am.

Following on from this, I have spoken with our HR Department and asked for a list of all staff and the dates in which the most recent Medical Screening has taken place. It has been decided that we will reissue the Medical Screening Questionnaire to all staff, regardless of length of service.

Lucklily we have a secure online system in which we can deliver the survey and maintain records.

I will then be looking at the figures, identifying any "at risk" individuals, and conducting personal risk assessments with them to ensure that, as a business, we are doing everything reasonable and practicable to protect those at risk.

achrn  
#3 Posted : 28 March 2023 13:25:30(UTC)
Rank: Super forum user
achrn

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...

peter gotch  
#4 Posted : 28 March 2023 13:50:23(UTC)
Rank: Super forum user
peter gotch

Hi achrn

There has been quite a lot of reportage that shows that the idea that Morrisons didn't do a risk assessment personalised for the victim appears to be complete nonsense.

As I read it they had moved him from the canteen area to the main store to reduce the risk to somebody who had had been diagnosed with epilepsy aged 4 and was suffering regular tonic-clonic seizures at the time of his death aged 27.

It appears that at one point his locker had been downstairs but had been moved upstairs at some time previous to the incident. The reports say that there was a meeting attended by he and his mother at which time the idea of moving the locker back down the stairs had been discussed. It seems that his mother was far keener on this happening than the victim who didn't want to be treated as a "special case" and I think that in consideration of what reasonable adjustments to make we have to take account of the person's own views (though we might decide to override those views).

The Inquest was apparently in 2016, yet it took years more for this to reach trial and I do wonder whether the CPS were somewhat reluctant to consider that prosecution was in the public interest, not least since the case is likely to reinforce discrimination against disabled people on grounds of health and safety.

So, it appears that the Jury decided that Morrisons were guilty on three charges, but there is nothing easily found in the public domain to detail the wording of those charges, and in particular, whether any alleged (and then proven breach) was causative of death.

Seems to me that it would be very difficult to defend the idea that moving the locker downstairs was reasonably practicable, noting the reverse burden of proof placing the onus to prove this element of the charge on the defendant (HSWA Section 40).

Whether such breach causative of death perhaps more problematic.

What do we take from this going forward? Do we have to put any epileptic person working in a supermarket into a Michelin Man suit just in case they have a tonic-clonic seizure, collapse and hit their head against some hard object, such as racking?

Some will just conclude that it is too dangerous for this person to be working in WHATEVER role in such a workplace and personally I think this would be a very retrograde move.

The size of the fine is interesting. The top of the scale for a "Large Organisation" (Turnover in excess of £50m per year) is £10m but the Sentencing Guidelines say that it might be necessary to move beyond that scale for a Very Large Organisation and Morrisons turnover is given in the Billions.

So, you could say multiply the £10m by perhaps 10 (easy to argue for a MUCH higher multiplier). 

But even with a multiplier of 10 then this takes the top of the scale to £100m and if so then a fine of £3.5m is not very large whatsoever.

thanks 4 users thanked peter gotch for this useful post.
HSSnail on 28/03/2023(UTC), GazNicki2504 on 28/03/2023(UTC), Kate on 28/03/2023(UTC), O'Donnell54548 on 29/03/2023(UTC)
HSSnail  
#5 Posted : 28 March 2023 14:27:41(UTC)
Rank: Super forum user
HSSnail

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. 

achrn  
#6 Posted : 28 March 2023 14:38:01(UTC)
Rank: Super forum user
achrn

Originally Posted by: peter gotch Go to Quoted Post

It appears that at one point his locker had been downstairs but had been moved upstairs at some time previous to the incident. The reports say that there was a meeting attended by he and his mother at which time the idea of moving the locker back down the stairs had been discussed. It seems that his mother was far keener on this happening than the victim who didn't want to be treated as a "special case" and I think that in consideration of what reasonable adjustments to make we have to take account of the person's own views (though we might decide to override those views).

But if you do go against the individual's expressed preference, then you are at risk of an accusation of  discrimination brought against you.

Quote:

Some will just conclude that it is too dangerous for this person to be working in WHATEVER role in such a workplace and personally I think this would be a very retrograde move.

Exactly.  I can anticipate an organisation being willing to make reasonable adjustments but not being willing to risk a multi-million pound fine.

GazNicki2504  
#7 Posted : 28 March 2023 14:40:20(UTC)
Rank: Forum user
GazNicki2504

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.

GazNicki2504  
#8 Posted : 28 March 2023 15:04:05(UTC)
Rank: Forum user
GazNicki2504

Originally Posted by: peter gotch Go to Quoted Post

Hi achrn

There has been quite a lot of reportage that shows that the idea that Morrisons didn't do a risk assessment personalised for the victim appears to be complete nonsense.

Indeed. I have read a few on this now, and the BBC reports that the entire hearing centrered around the single point that the locker was upstairs. Perhaps smaller lockers could have been located downstairs in which employees could store small personal items such as cigarettes and keys, etc. Perhaps that would have been a more middle-ground approach and signficantly reduced the risk given the victim didn't want to be treated as a special case.

Originally Posted by: peter gotch Go to Quoted Post
As I read it they had moved him from the canteen area to the main store to reduce the risk to somebody who had had been diagnosed with epilepsy aged 4 and was suffering regular tonic-clonic seizures at the time of his death aged 27.

It appears that at one point his locker had been downstairs but had been moved upstairs at some time previous to the incident. The reports say that there was a meeting attended by he and his mother at which time the idea of moving the locker back down the stairs had been discussed. It seems that his mother was far keener on this happening than the victim who didn't want to be treated as a "special case" and I think that in consideration of what reasonable adjustments to make we have to take account of the person's own views (though we might decide to override those views).

This is a difficult one, but perhaps one that as an employer it needs to be the decision of the employer and not the employee. But that would require a much deeper look into anti-discrimination laws, and likely open up a world of other cases against the employer. It feels as though perhaps the various laws could have been working against the employer in this case.

Originally Posted by: peter gotch Go to Quoted Post
Seems to me that it would be very difficult to defend the idea that moving the locker downstairs was reasonably practicable, noting the reverse burden of proof placing the onus to prove this element of the charge on the defendant (HSWA Section 40).

Given that they had previously had his locker downstairs (as per what you mentioned earlier) then it is reasonably practicable that they could have maintained that stance and enforced his locker being downstairs. Under H&S that would have been reasonably practicable, under anti-discrimination it would be different of course.

Originally Posted by: peter gotch Go to Quoted Post
What do we take from this going forward? Do we have to put any epileptic person working in a supermarket into a Michelin Man suit just in case they have a tonic-clonic seizure, collapse and hit their head against some hard object, such as racking?

Some will just conclude that it is too dangerous for this person to be working in WHATEVER role in such a workplace and personally I think this would be a very retrograde move.

Certainly will raise a few questions and I think a few employers will make a few mistakes on this too. Just need to find that elusive middleground.

peter gotch  
#9 Posted : 28 March 2023 15:42:54(UTC)
Rank: Super forum user
peter gotch

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.

thanks 1 user thanked peter gotch for this useful post.
GazNicki2504 on 30/03/2023(UTC)
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