New judgement on protective clothing written by Bernard Allen

Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6 On appeal from [2014] CSIH 76 – 10 February 2016

It might have implications for schools and residential homes where staff are at risk from bites, blows and kicks from children and young people. This case involved a member of staff who slipped on an icy path but the logic could be applied to all protective equipment.

In summary the Supreme Court judged that an employer must conduct a risk assessment and specify protective clothing which is available that has been shown to reduce risk. “The precautions taken, in the form of advice to wear appropriate footwear, did not specify what might be appropriate. The Lord Ordinary was entitled to conclude that there had been a breach of regulation 3(1) of the Management Regulations [92].

“The Lord Ordinary found that anti-slip attachments were available which would have been suitable to reduce the risk of home carers slipping and falling on ice, and that the risk was not adequately controlled by other means which were equally or more effective.”

“Arm guards, shin pads, helmets body armour and anti-spit bags are available and used in other service settings. Some are clearly not appropriate for care settings – for example see some of what has been suggested for special schools on: https://www.ppss-group.com/.

What providers do need to do is conduct and record a risk assessment to determine whether or not such measures are appropriate for their setting and if not, what other adequate measures have been put in place to reduce the risk.

“A reasonably prudent employer would conduct a risk assessment so as to take suitable precautions to avoid injury to its employees. The duty to carry out a risk assessment was logically anterior to determining what precautions a reasonable employer would take to fulfil its common law duty of care”.

NB: the Court has defined “adequate” as making risk of injury “highly unlikely”.

“A risk would not be “adequately” controlled unless injury was highly unlikely. In the circumstances, it was reasonable to infer that the failure to provide the anti-slip attachments caused or materially contributed to the accident.”

Managers should consider looking at their accident book to determine whether risk of injury is “highly unlikely”.

13 Apr 2016
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