In 2023, Morrisons Supermarket was fined £3.5 million for failing to prevent the death of a store worker who had epilepsy and were convicted for three health and safety offences. At the end of last month, the company lost their bid to overturn this ruling.
This is a tragic accident which lead to Morrisons being found guilty of having missed opportunities to keep Mr Gunn safe from harm and ultimately failed in ensuring his health and safety.
Mr Gunn suffered with epilepsy and therefore at risk because of having frequent seizures. Morrisons were aware that he had this condition and had even been warned of the risks that he faced because of the frequent seizures he experienced. On 25 September 2014, Mr Gunn is believed to have suffered a seizure whilst at work, leading him to fall from a staircase where he sustained a fatal head injury, and he passed away several months later.
Mr Gunn had to use the stairs in store, at least eight times a day for each of his breaks, because he was required to keep his cigarettes in his locker, and the staff canteen was upstairs. The trial found that Morrisons should have moved his locker downstairs and to have been allowed to use the public café that was within the store downstairs, rather than the staff canteen.
Morrisons argued that Mr Gunn could have used the lift rather than the stairs, although they were aware that he had a dislike of using lifts. They also said that he had been at no more risk of danger on the stairs than anywhere else in the supermarket.
However, Morrisons were found liable for his death because they should have realised the danger associated with him using the stairs and was found guilty of three health and safety breaches.
The appeal Judge said that “there was ample evidence that the conduct of the company exposed Mr Gunn to a real risk….and the event that led to his death was one that had been feared by his mother and colleagues and all fears were made known to the company”.
What does this mean for employers in terms of Health and Safety laws?
This case is a reminder of how the UK’s health and safety laws operate. However, it is not just about legal compliance, but also moral obligations towards the health and wellbeing of your staff.
In terms of health and safety, employers are legally required under various health and safety regulations to protect all employees, including those with underlying medical conditions:
- The Health and Safety at Work Act 1974 mandates employers to ensure the welfare of their employees as far as is reasonably practicable. This includes conducting risk assessments and implementing necessary measures to mitigate identified risks.
- Employers should engage in open discussions with employees who have disclosed their medical conditions to identify suitable accommodations. This should include discussing the employee’s needs, potential accommodations, and assessing the feasibility and impact of these adjustments on the workplace
- When considering health and safety risks, employers must perform individual risk assessments rather than making assumptions based on general information about a condition. This approach ensures that decisions are tailored to the specific circumstances and needs of the employee, considering medical advice and the current work environment.
- Employers must also document their efforts to accommodate employees with underlying conditions. This includes maintaining records of risk assessments, accommodations provided, and communications with the employee. Such documentation is vital in demonstrating compliance with legal requirements and can protect the employer in the event of legal scrutiny.
What does this mean for employers in terms of employment law?
Aside from health and safety legal and moral obligations, employment law must also be considered.
- The Equality Act 2010 requires employers to make reasonable adjustments for employees with disabilities.
- Employers must proactively engage with employees with disabilities, by carrying out thorough risk assessments and implementing necessary accommodations to ensure a safe and inclusive workplace. By doing so, not only complies with legal standards but also fosters a positive and supportive work environment.
- It is crucial for employers to avoid discriminatory practices. Actions such as excluding an employee from work solely based on their medical condition can be deemed discriminatory unless there is a substantial, documented risk that cannot be mitigated through reasonable accommodations.
There are other learnings too from this case, which is that employers must also ensure that workplace practices do not unfairly discriminate against employees with disabilities whilst addressing potential risks associated with their conditions.
Whilst this has been a case relating to health and safety breaches, it can also illustrate the importance of an employer managing their responsibilities under the Equality Act 2010.
Under the Equality Act 2010, disability discrimination is extended to include discrimination “arising from” a disability, e.g. treating someone with epilepsy unfavourably because of their condition leads to seizures, or even, penalising someone for taking a higher level of absence when it due to the disability. Indirect discrimination is also extended to cover employees with disabilities.
In order to claim disability discrimination, individuals must show that they have a “physical or mental impairment” that has a “substantial” and “long-term” adverse effect on their ability to carry out “normal day-to-day activities”. The employee simply must show that they have difficulty in carrying out day-to-day activities.
When considering whether discrimination has occurred, the claimant must show that they had been treated unfavourably because of something arising “in consequence” of their disability; there is no requirement to establish that their treatment is less favourable than that experienced by a comparator without the disability. The employer must however know, or reasonably be expected to know, that the employee has the disability in question.
The Equality Act 2010 also imposes a positive duty to make ‘reasonable adjustments’ to the workplace where any provisions, criteria or practices made by the employer place the employee concerned at a substantial disadvantage, when compared with someone who does not have a disability. Under the law, employers cannot justify a failure to make reasonable adjustments, so when assessing the reasonableness of adjustments, employers should consider factors such as:
- the cost of adjustments
- their effectiveness in overcoming or reducing the practical effects of the disability
- the size and resources available to the business
- the extent of any disruption such adjustments would have on the employer’s activities.
- the benefits of an employee’s relationship with clients.
In this case for example, a reasonable adjustment could have been allowing Mr Gunn to have a locker downstairs, and for him to use the café within the supermarket.
Beyond legal compliance, fostering a safe and inclusive workplace culture is essential. Employers should educate all staff about the importance of inclusivity and the specific challenges faced by colleagues with underlying medical conditions. This can help in building a supportive work environment where all employees feel valued and protected.
WE ARE HERE TO HELP
We will be discussing cases such as this, in our October webinar, our free event “understanding risk when it comes to managing your people”, during which we will explore how business owners can effectively manage risk by using HR and Health and Safety strategies to protect the business from the risk of tribunal claims. Specifically, we will cover:
- Understanding your statutory duties as an employer, that are fundamental and at the heart of the employment contract
- The role of HR to both the employer and employee
- Types of tribunal claims
- Steps employers can take to prevent a claim
- What to do when you receive a claim.
