12 December 2019

Humbug. This utterance of Dickens’ favourite parsimonious employer suggests he was not entirely enamoured of the festive period. Could he have been thinking about the risks associated with office parties, excess consumption and that determined employee wobbling on a wonky ladder to hang up the final paper chain?

Statistics show an increase in the rate of injuries during the festive period, a sobering thought for us all, and the festive season will have many an employer reaching for a tumbler of whisky in anticipation of the forthcoming mayhem. As even trivial injuries suffered in the workplace can result in a claim, at the risk of impinging on the spirt of the season of goodwill, a little forethought could avoid unintended late gifts to pursuer firms. In addition to considering whether any planned festive activities could give rise to a claim, this could be a good time to ensure that risk assessments and training records are up to date, and the all-important ‘sign off’ sheets available.

The anticipated introduction of Qualified One Way Cost Shifting (QOCS) in Scotland, on one view at least, is unlikely to lead to a deluge of claims which have no legal merit, however, the financial risk to Pursuers and their agents will to an extent be removed. While the perennial argument advanced by employers, that the pursuer ought to have exercised common sense before approaching the task (for example, standing on a swivel chair to change a light bulb), appears reasonable on the face of it, firms acting for pursuers are still very much referring to health & safety legislation in their pleadings, despite the terms of section 69 of the Enterprise and Regulatory Reform Act 2013, which you will recall removes civil liability for breaches of health & safety legislation. If there are gaps in the paperwork, these may be exploited.

The workplace, you will recall, is not restricted to the ordinary place of work. The scope of what constitutes the workplace can include other locations. In Kennedy v Cordia (Services) LLP [2016] UKSC 6, where liability ultimately attached and which involved a home help who slipped on ice while visiting a service user’s home, the issue whether the pursuer was ‘at work’ while travelling to the service user’s home was one of the many issues considered.

Consider a situation where one of Santa’s elves is injured when sent to decorate a tree at a customer’s premises. If he slips on ice and injures himself at the customer’s premises, a claim could be intimated against his employer. Consider also the situation that while erecting the tree, he is injured. He had not received training in relation to the task. In defending such a claim, typical considerations would include whether or not the elf was an employee or a self-employed contractor (and the inevitable dispute whether the label ‘self-employed’ has been used to disguise the true relationship between the parties), and consideration of the contractual documentation between the parties, including the all-important (and hopefully valid) indemnity clause. Where the injured party is an employee, issues relevant to whether the activity had been risk assessed and the subject of training require to be considered. If the employee elf causes an injury to a bystander, vicarious liability could see Santa’s insurer dealing with a claim.

Season’s greetings!

Contact: Alastair Barbour, Associate, awb@bto.co.uk T: 0141 221 8012