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A previous article of mine explored the law regarding providing employees with a safe system of work, this being one of the four principal common law duties of an employer alongside providing a safe place of work, a competent staff of men and adequate plant and material.

The system of work however is often the most important factor as it relates to how the work is being done i.e. is the established work procedure safe?

Various other laws expand upon the issue and take it further such as the various statutory regulations and it now perhaps these days commonly accepted that a duty to undertake a risk assessment goes somewhat hand-in-hand with providing a safe system of work, as opposed to being something simply required under the Management of Health and Safety at Work Regulations 1992/1999.  It is now therefore felt that the duty to undertake a risk assessment is more a common law duty than merely one more requirement created by the various statutory regulations.

In this article though I want to consider the familiar situation of an employee following a system of work that he or she perhaps should, or could, have ascertained was unsafe, or perhaps improved upon, and then suffers injury.

The first higher court authority matter that came to prominence on this point is that of General Cleaning Contractors v Christmas [1953] AC 180.  The Claimant was an experienced window cleaner sent by his employer to clean a customer’s windows.  In order to clean the outside windows he had to put his hand between two window sashes but when one sash closed into the other, for reasons unknown, his hand was crushed and, it being his only means of support, he fell.

His employer argued that as an experienced window cleaner he would have been aware sash windows can close unexpectedly and so he should have wedged it open.  In short: he had placed himself in a dangerous situation and suffered the foreseeable consequence of an injury at work.  The Court rejected this defence and saw it as an attempt by the employer to place the onus of developing a safe system of work onto the employee, rather than employer.

Lord Oaksey, of the House of Lords, commented:

“In my opinion, it is the duty of the employer to give such general safety instructions as a reasonable careful employer who has considered the problem presented by the work would give to his workmen.  It is… …well known to employers… …that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve.  It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work themselves.  Workmen are in not in the position of employers.  Their duties are not performed in the calm atmosphere of a boardroom with the advice of experts.  They have to make their decisions on narrow window sills and other places of danger and in circumstances in which dangers are obscured by repetition.”

Therefore, in circumstances in which an employee was undertaking work in a manner which an outside observer, perhaps even without much experience/knowledge of the industry, could have likely spotted the risk, it was the employer that was held liable.  Note the Court’s point about the employer not only being responsible for implementing a safe system of work but to do so in the context of employees who are “…very frequently, if not habitually, careless about the risks which their work may involve.”

This therefore undermines the frequently raised defence in employer’s liability matters of the employee could, or should, have easily discerned the risk to themselves – the employer truly must adopt an almost paternal approach, anticipating carelessness and/or poor decision making on the part of employees.

But what about situations in which a particular system of work has been followed for years without incident? 

This was the case in Durnan Barnes v Stockton-on-Tees Borough Council [1997] EWCA Civ 2594.  A particular system had been followed for a number of years when tidying away an inflatable slide at a swimming pool.  Although there had never been an incident on this occasion whilst an employee was standing on the wet slide to untie the ropes underneath it he fell suffering serious injury.  The Court held that although the system had been followed for many years without incident, there was “inevitably a potential risk” in that manner of work.  Interestingly however the employee was found 50% contributorily negligent, which perhaps distances the position a little from General Cleaning Contractors.

What if the employer fails to implement a safe system but tells an employee not to do things a particular way?

This would be a hypothetical “negative” of the General Cleaning Contractors situation in that whilst the employer has not actively implemented a safe system of work, they have ruled out one particular approach.  The law would suggest that if an employee suffers an accident at work as a result of adopting such a prohibited approach, notwithstanding the fact no safe system has been properly implemented, the claim will not succeed.

The reference point here is Ammah v Kuehne Nagal Logistics Limited [2009] EWCA Civ 11.  The Claimant was injured whilst trying to retrieve a pamphlet from a high shelf.

Reading the judgment in Ammah in full a key point emerges in that during the original case the Claimant, in cross examination,  “accepted that he had been told that if he could not reach a shelf he should ask for a man-riser.”  Further, another employee witness accepted that whilst he had not been provided with specific training he had been told not to stand on a box.

In truth, despite some other commentators’ slant on this issue, it is perhaps the case that Ammah does not truly fit into a discussion here.  That case in reality turned more upon the issue of communication of the safe system of work – the Claimant having accepted in cross examination he had been told if he could not reach a shelf he should use a man-riser; once the Claimant accepted he had received instruction in respect of the safe system of work he had effectively lost.  The other perhaps principal issue in Ammah was that of the suggestion that whilst such an instruction had been received, in reality other employees were standing on boxes and so the allegation perhaps was more that the established safe system of work had been deviated from and whether the Claimant was entitled to follow such a general trend of deviation despite the only official guidance being to use the man-riser.

A review of the judgment in this case reveals this limb of the Claimant’s case had not perhaps been properly developed/explored before the first trial in that it seems allegations of the employer condoning other employees standing on boxes first emerged during cross-examination, which the trial judge cut short for the understandable reason there was nothing in the pleadings or statement evidence on this point.

Comment – where does this leave us?

There appears nothing from the higher courts so far to contradict or move away from General Cleaning Contractors.  In truth, although often referenced alongside General Cleaning Contractors, Ammah was a different issue i.e. the factual issue of communication of an accepted to be safe system of work (and in the background perhaps the Claimant’s solicitors’ ostensible failure to properly explore the issue regarding whether the situation “on the ground” was somewhat different and that the employer had implicitly enabled an alternative, more dangerous system).

More interesting perhaps is that of Durnam Barnes – why hold this employee partially responsible when according to the House of Lords in General Cleaning Contractors the employee should take action in the context of an occasionally careless workforce?

Irrespective, it appears clear the duty to implement and enforce a safe system of work remains squarely with the employer and those who leave employees to devise their own systems are highly likely to liable for injuries suffered.

By James Winterbottom, Solicitor. 

Aston Knight Solicitors Bury are a specialist firm of solicitors that specialise in serious injuries including medical negligence claims and work injury compensation. If you would like to discuss further then please contact a member of our team on 0800 999 6661 or for a free and confidential discussion.

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