Sir Robert Francis QC (sitting as a deputy high court judge) recently handed down his judgment in Harris v Bartrums Haulage and Storage Ltd and another [2020] EWHC 900 (QB). It serves as a useful reminder of what employers must do to discharge their duty of care in terms of training and risk assessments. The key is being able to show that they are more than a “mere formality” [110]. On the facts of Harris, Sir Robert found that the First Defendant had acted negligently but dismissed the claim on causation. However, his critique of the First Defendant’s training and risk assessment process is relevant to all employers.
The importance of risk assessments and training has striking relevance during the Covid-19 crisis when employers are sending more employees back into the workplace. As this article explains, the risks to health and safety must be accounted for in up-to-date risk assessments and meaningful protective measures if employers are to avoid potential civil claims.
Background to Harris
The Claimant’s personal injury claim arose from an accident at work on 24th February 2015. He was employed by the First Defendant and his role included driving a tractor to collection sites to pick up goods. On the day of the accident, the Claimant had driven to a collection site that was on a slope. He got out of the tractor to couple the trailer onto it, but did not apply the tractor’s handbrake. It began to roll away, injuring him in the process.
The training provided by the First Defendant consisted of generic induction training in October 2014 when he started as an agency worker. When he became an employee in early February 2015, he was given a copy of the company handbook which included information on the (un)coupling process. He was told he could read it at his leisure and signed a declaration that he had read and understood its contents five days into his employment. The First Defendant produced a witness statement to say that they had taken him through it before he signed. However, the Claimant disputed this in live evidence, adding that he had not had time to read it and that “the attitude was, more or less, ‘here is the handbook, sign some forms so we can pay your wages and off you go’ ” [9] & [80].
Before he worked for the First Defendant, the Claimant worked as a lorry driver and obtained an HGV licence. For that licence he completed a four-day training course in 2013 and committed to 35 hours of training every five years. As a result of this training and the Claimant’s own experience, there was in fact nothing in the First Defendant’s handbook that he did not already know [6] & [9].
The demonstration training consisted of the Claimant applying the brakes whilst being watched by a colleague on site. This came across as a cursory process in evidence, but the Claimant accepted that he already knew how to operate the brake [10].
The First Defendant did not have a risk assessment for the yard that the Claimant was working in. It did have a risk assessment that covered some of the risks that materialised but this did not include the basic risk of an employee failing to apply the handbrake [56(ii)] & [76(vii)].
The claim against the First Defendant (the employer)
The relevant allegations against the First Defendant were [56]:
- Failure to provide adequate training including for the (un)coupling of trailers; and
- Failure to carry out any risk assessment of the particular yard in which the accident occurred and/ or any adequate risk assessment of the risks arising.
The allegations stemmed from the “six pack” regulations. However, since they did not give rise to civil liability by virtue of section 69 of the Enterprise and Regulatory Reform Act 2013, they were used to demonstrate the alleged breaches at common law [58].
The First Defendant denied liability and causation. It alleged that the accident was caused by the Claimant’s own negligent failure to apply the handbrake, being a basic safety measure that he was aware of at the time [59].
Judgment
The judge found that the First Defendant had breached its duty of care in relation to training and risk assessments, but that these breaches had not caused the Claimant’s loss. This was partly because the Claimant accepted he knew the subject of the training from his own previous experience. Accordingly, the claim was dismissed. Nonetheless, the judge’s analysis on breach is useful reading that can be applied to many accidents at work where the allegations relate to a failure to train or undertake adequate risk assessments.
Training
The judge found that the First Defendant’s approach to training was a breach of duty and that their induction training “left a lot to be desired” [110]. He then dealt with the factual dispute over whether the Claimant has been taken through the handbook before signing. He found that the weight of the First Defendant’s evidence (a witness statement) did not match the Claimant’s evidence (live at trial), such that “in so far as [the First Defendant’s] statement is contradicted by other evidence including that of the Claimant I disregard it” [82].
Bearing this in mind, the judge made clear that simply getting the Claimant’s signature was not good enough: “it is not in my judgment sufficient merely to supply a new employee with a handbook and obtain, as I find they did, a signature declaring the employee has read it, when manifestly he could not have done so at that point … Acting in this way [suggests] that the requirement to read the handbook is a mere formality” [110(i)].
The judge then made a separate finding on whether it was negligent not to have provided “refresher” training by the time of the accident. He found that it was not, since the Claimant “was a new employee … already complying with his personal obligations to undertake continuous training” [110(ii)]. Therefore, the First Defendant was entitled to take these factors into account when assessing what training the individual Claimant required.
Having made these comments about the (in)adequacy of the First Defendant’s approach to training, the judge found that since this particular claimant had prior knowledge of the matters he was trained on and the contents of the handbook, there was no causation.
Risk assessment
The judge recited the starting point for the employer’s common law duty of care from Stokes v Guest [1968] 1 WLR 1776 as cited with approval in Baker v Quantum [2011] UKSC 17: “the overall test is … the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in light of what he knows or ought to know … where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it” [9].
The court was referred to the Supreme Court’s comments on risk assessments in Kennedy v Cordia [2016] UKSC 6, endorsing the Court of Appeal’s approach in Allison v London Underground Ltd [2008] ICR 719: that “the most logical way to approach a question as to the adequacy of the precautions taken by an employer was through a consideration of the suitability and sufficiency of the risk assessment” [89]. So, the risk assessment was to be used as the starting point for whether the employer had discharged their duty of care.
The judge made findings on the risk assessment issue in two parts. Firstly, he found that the generic risk assessment was adequate in its own right, notwithstanding that it did not cover the specific risk of failing to apply the handbrake as it was such as basic requirement [110(iii)].
Secondly, he found that the failure to risk assess the yard itself was negligent. However, he found that “any breach of duty to undertake an adequate risk assessment was not causative of the Claimant’s injury” since it would not have introduced anything new that the Claimant or indeed the First Defendant did not already know [110]. Therefore, again there was no causation.
Comment
These allegations are common to many employer’s liability claims involving accidents at work. Therefore, the review of what is required of an employer to discharge its duty of care in training and assessing risks has wide relevance to employers.
The practical points to be taken from the Harris judgment are as follows:
- An employer can rely on an employee’s account of previous experience to decide how much training they need. However, it is better to err on the side of caution, either by having a detailed discussion with the employee about exactly what they do and don’t know that is relevant to the job or by providing them with all the standard training.
- An employer should make sure that employees have enough time at work to read training manuals and the like, and that they have done so, before they are asked to sign a declaration to that effect. The declaration will carry little or no weight if not.
- It is better to provide employees with a hard or soft copy of the manual than to give them temporary access.
- A comprehensive risk assessment is a powerful tool that will either indicate that an employer has taken all reasonably practicable steps to minimise and/or avoid risks materialising or be used by the employee claimant to suggest the opposite.
- Keep a record of who took the employee through the handbook and/or training documents and ensure they are available to give live evidence at trial. If they have only provided a witness statement, it is likely to be given less weight than an employee’s live account at trial if the employee is a credible witness as happened here.
- The length of the employee’s employment is relevant to what training they should have received: offer refresher training to employees who have been with the company for some time. This will also help to show that the employer is abreast of developments in health and safety and translating this into practice.
- In cases where the employer is unlikely to show their training/ risk assessment process was sufficient to discharge their duty of care, they should focus their attention on causation as one does not necessarily flow from the other. This includes consideration of what the claimant told them about his pre-existing knowledge or training.
Although no findings were made on contributory negligence because the claim was dismissed on causation, the judge did say that he would have made an 80% reduction because of the basic nature of the Claimant’s error in failing to apply the hand brake [114(iii)]. Parties can use this to assess the likely degree of contributory negligence in their own cases: the take-away being is that the more basic the error, the greater the likely finding.
In the context of Covid-19
The Covid-19 crisis has brought with it an unprecedented change to the way that almost all of us work. Whilst many of us have adapted to working remotely, those in manual trades do not have that luxury. In the last couple of weeks, the government guidance has again been updated and as a result more construction sites are re-opening for work. The employers’ obligation is clear but challenging: to adhere to the government guidance on social distancing and other covid-19 reductive measures at all times. If they fail to do so, they face potential claims from employees who contract the virus at, or in connection with, their work. Many of these will be modest in value but others could be considerable, depending on the severity of the employee’s condition and its impact on their life and work.
The base requirements are the same as for any other risk at work: to risk assess, train and communicate with employees to create the lowest reasonably practicable level of risk. The duty to keep abreast of developments has rarely been so onerous (with new government advice every two or three weeks) but employers must take the time to do so and to reflect them in working practice and risk assessments. The duty also extends to their employees’ commute and as such employers must be flexible for those who are unable to safely travel to work.
The government has produced industry specific guidance for employers, mirrored by the HSE, that emphasises social distancing and maintaining hygiene standards as the most important practical steps. There is an almost equal emphasis on communication and visible notices that remind and inform employees of the steps being taken by employers. Nobody is required to work in an unsafe environment, and the more that employers do and are seen to do, the more likely they are to discharge their duty of care.
Megan Griffiths, pupil
Harris judgment: click here
Government workplace guidance (regularly updated): click here
HSE workplace guidance (regularly updated): click here
