Member Article

How far do you have to go in carrying out risk assessments when the risks to your employees arise from activities conducted off your premises?

It is a question that has always troubled health and safety advisors.  The recent decision of the House of Lords in Smith (Jean) v Northamptonshire County Council, 2009 has helped to define the boundaries. In this case a care worker employed by the council was injured at a client's home. Mrs Smith was employed as a minibus driver, and part of her duties was to attend the home of a wheelchair bound client to collect and transport her to a council-run day centre.

Mrs Smith had undertaken this task on many occasions, and it involved pushing the client down a wooden ramp at the back of her property when its' edge crumbled. The ramp had been provided by the NHS and had been in situ for many years.

Mrs Smith sued the council for damages for her injury alleging that they were strictly liable under the Provision and Use of Work Equipment Regulations 1998 (PUWER) because the ramp was ‘work equipment'.

There is strict liability upon an employer for inadequately constructed or inadequately maintained work equipment.

Mrs Smith was successful in the county court. The judge ruled that the ramp was work equipment because it was being used by Mrs Smith while she was at work.

The council appealed the matter to the Court of Appeal who allowed the appeal and held that the ramp was not work equipment for the purposes of PUWER. They took into account a number of factors:

• the ramp had been installed by others and not the county council
• the county council had neither the ability nor the right to maintain it
• it was used mostly by people not employed by the county council
• it was to an extent permanent
• the ramp was part of the patient's home

Mrs Smith appealed that decision to the House of Lords. Judgment was given on the 20 May 2009 in favour of the county council. 

The House of Lords emphasised the need for an employer to have control over the equipment before they could be liable.

One of the arguments used by Mrs Smith had been that as the council carried out a risk assessment at the client's home and although primarily for the purposes of the Manual Handling Regulations, it was therefore aware that the ramp would be used whilst Mrs Smith was in the course of her employment.

The Law Lords, however, ruled that employers would not be considered to have control over equipment for the purposes of PUWER just because of the mere fact that they had inspected it.

Their Lordships considered employers should not be strictly liable just because they had been careful to satisfy the requirements of other Regulations requiring them to undertake risk assessments.

This decision is important to a number of organisations whose employees by the very nature of their undertaking must work away from the employer's premises.

This is frequently the case for housing associations, charities, educational establishments where students are undertaking workplace experience, as well as the caring professions when attending people in their home.

This decision does not, however, reduce the need to ensure the safety of equipment supplied by an employer for use by the employee or the need to ensure that there is a safe system of work and adequate supervision.

 

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