Make sure your health and safety policies are relevant

Eyres v Atkinsons Kitchens & Bedrooms Ltd

Michael Eyres was an employee of Atkinsons Kitchens and Bedrooms. Late one evening, he crashed his van while returning to Bradford on the M1, having worked a 19-hour day and driven hundreds of miles. Eyres, who was not wearing a seatbelt, suffered a serious spinal injury in the accident, which left him tetraplegic.

Prior to the accident, while his managing director Craig Atkinson was asleep as a passenger, Eyres read and sent a number of text messages on his mobile phone while driving at high speed. The accident was caused by Eyres having to brake suddenly and losing control of the vehicle.

Eyres had claimed that his employer was liable in negligence and/or breach of statutory duty because it had caused or permitted him to drive when he was too tired having worked excessively long hours without a proper break.

Decision

The High Court found that it was Eyres' not paying attention through using his mobile phone that caused the accident, rather than his tiredness, and entered judgment in the defendant's favour. Eyres appealed.

The Court of Appeal overturned the High Court ruling, concluding that on a balance of probabilities the accident was caused by Eyres falling asleep, rather than using his mobile phone.

The Court of Appeal found that his employer, which encouraged a long-hours culture, had been negligent by requiring him to drive in such circumstances and doing nothing to guard against the risk of injury.

It was also directed that Eyres' damages should be reduced by 33% due to his contributory negligence in not wearing a seat belt and in driving while tired and liable to fall asleep.

Key implications

All employers should be alert to health and safety and working time requirements. However, employers of staff who engage in higher-risk activities (such as long-distance driving, working at height, or operating heavy or dangerous machinery) must take care to ensure they comply at all times with their duty of care to their employees. Casually asking an employee who has worked long hours, and is clearly suffering from fatigue, if they are "OK to carry on" with the relevant activity will not usually be sufficient.

The Eyres case is also a reminder that while risks taken by the employee may reduce damages through contributory negligence, they may not be enough to ensure that the employer escapes liability. Having exemptions or obtaining employee opt-outs from working time legislation will not prevent liability for health and safety or negligence claims.

The Corporate Manslaughter and Homicide Bill will bring such risks into even sharper focus.

Employers should ensure their health and safety policies adequately address risks that are relevant to their workforce, and that they:

Comply with all relevant health and safety and working time legislation for the industry in question.
Make it clear that a long working hours culture that puts employees' health and safety at risk is positively discouraged.
Ensure that working schedules and, where relevant, journey times are realistic and safe, with provision for rest breaks.
Put checks in place to ensure these schedules are adhered to.
Provide practical measures to ensure that employee health and safety is not placed at risk - for example, ensuring an overnight stay rather than requiring completion of a long road journey at the end of a working day.

By Adam Fuge, partner, Matthew Arnold & Baldwin

HR : http://www.personneltoday.com