Reasonableness and the Enterprise & Regulatory Reform Act 2013

 Lady Stacey issued her Opinion on 17 June 2015 in the case of Elizabeth Gilchrist v Asda Stores Limited 2015 CSOH 77.

The Pursuer was employed by Asda as a Shop Assistant and fell from a footstool.  Immediately before the Proof an averment that she was standing on the footstool and reaching to hang items of clothing when she lost her balance and fell backwards was deleted. It was replaced by an averment that while she was standing on a footstool she lost her balance and fell backwards ie, the reference to hanging items of clothing disappeared.

In the course of referring to various statutory duties incumbent upon Asda, Counsel for the Pursuer submitted that notwithstanding The Enterprise and Regulatory Reform Act 2013 in which Section 69 amended the Health and Safety at Work Act 1974 Section 47, employers still remained under a statutory duty to comply with Health and Safety Regulations.  The effect of Section 69 of the 2013 Act is to provide that any breach of a duty imposed by a statutory instrument which contains Health and Safety Regulations will not be actionable unless any 2013 Act Regulations provide a statutory instrument will be actionable.

Counsel referred to a House of Lords ministerial statement to the effect that the 2013 Act did not “undermine core health and safety standards” and that statutory duties incumbent upon employers would continue to be relevant in relation to the standards expected of employees in Civil cases.

Essentially Counsel argued that if an employer breached a Regulation and committed an offence, the employer could hardly argue that he was acting reasonably.

Counsel for Asda appears to have made no detailed argument on the point and Lady Stacey indicated she was prepared to accept Counsel for the Pursuer’s argument as there were no contrary submissions.

Notwithstanding Counsel’s arguments in relation to the Management of Health and Safety at Work Regulations 1999, the Work at Height Regulations 2005 and the Provision and Use of Work Equipment Regulations 1998, the Pursuer’s case failed.  The argument was that there had been no risk assessment in relation to hanging items (of clothing) at height, that generally anyone who was required to work at height had an associated risk of falling and a proper assessment would have identified that the Pursuer (who was only 5 feet tall) was at risk of overreaching and overbalancing while working on the footstool.

These arguments came to nothing because Lady Stacey found that the Pursuer’s evidence didn’t support her case as pled.  The fall had nothing to do with her hands being full or because she had to reach above her head on a stool.  The Pursuer had proved only that she had fallen when coming down from the footstool.  There was no argument that the footstool of itself was unsafe.  The Pursuer hadn’t fallen because she had had to carry out a manual handling task.  It was not argued that the footstool was not a suitable piece of equipment in the circumstances. Lady Stacey said:

“All that could be said was that she had to stand on a stool to do her work. It was accepted that the stool was suitable for the task for which it is often used in a library.”

While it is perhaps unfortunate that there wasn’t a detailed counterargument to the Pursuer’s submissions on the effect of the 2013 Act and the various Health and Safety Regulations, it is not entirely surprising that Lady Stacey accepted the Pursuer’s Counsel’s arguments.

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