Factual and Procedural Background
On 2 February 2023, Company A was convicted in the Crown Court at The City of three offences relating to health and safety at work. The offences included failing to ensure, so far as reasonably practicable, the health, safety and welfare of employees contrary to section 2 of the Health and Safety at Work Act 1974, and failing to carry out and review suitable and sufficient risk assessments under the Management of Health and Safety at Work Regulations 1999. On 17 March 2023, Company A was fined £3.5 million on the first count, with no separate penalties on the others.
The company applied for leave to appeal the convictions, which was initially refused by a single judge. The company renewed its application for leave to appeal.
At the material time, an employee, referred to as Plaintiff, who had epilepsy, was employed at Company A's supermarket in The City. Plaintiff was required by company rules to store personal belongings in a locker located on the first floor, accessible only via a staircase with a large void down to the stairwell. Despite concerns raised by Plaintiff's family and occupational health officers about the risks posed by the stairs given Plaintiff's epilepsy, the locker was not relocated to the ground floor.
On 25 September 2014, Plaintiff fell from the stairs, sustaining severe head injuries and subsequently died. The prosecution case was that Company A failed to mitigate a known risk by not relocating the locker or conducting appropriate risk assessments. The defence argued that the risk was a routine life risk unrelated to work activities, and that no breach of duty occurred.
Legal Issues Presented
- Whether the use of the staircase by an employee with epilepsy constituted a relevant risk materially related to the employer's activities under section 2 of the Health and Safety at Work Act 1974.
- Whether Company A was required to carry out and review a suitable and sufficient risk assessment in respect of Plaintiff's condition and use of the stairs under the Management of Health and Safety at Work Regulations 1999.
- Whether the duty to make reasonable adjustments under the Equality Act 2010 affected or overlapped with the health and safety duties under the 1974 Act in this context.
- Whether the judge erred in allowing the case to proceed to the jury on these issues.
Arguments of the Parties
Appellant's Arguments
- The risk faced by Plaintiff from using the stairs was not occupational but a routine life risk, thus outside the scope of the employer’s duty under the 1974 Act.
- The staircase complied with building regulations and was safe for ordinary use; therefore, no breach of duty occurred.
- There was no obligation under the Management of Health and Safety at Work Regulations 1999 to conduct person-specific risk assessments.
- The duty to make reasonable adjustments under the Equality Act 2010, which requires employee consent, was the appropriate mechanism, not the health and safety legislation.
- The judge improperly left a legal question—regarding the overlap between the 1974 Act and the Equality Act 2010—to the jury.
- The prosecution failed to prove the absence of a risk assessment, as no positive evidence was called.
- Relied on the precedent in R v Porter, arguing that insignificant risks arising from routine activities should be ignored and that no real risk was established.
Respondent's Arguments
- This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Porter [2008] EWCA Crim 1271 |
Distinction between real and insignificant risks; routine life risks may be disregarded under health and safety legislation. |
The court found Porter distinguishable. Unlike in Porter, here there was evidence of a real risk to the Plaintiff, known to the employer, which was not fanciful or trivial. |
| R v Chargot [2009] 1 WLR 1 |
Clarification that Porter was an exceptional case and identified factors relevant to determining real risk. |
The court cited Chargot to support the principle that a real risk must be real, not fanciful, and noted the fears expressed by Plaintiff’s family and colleagues as evidence of a real risk. |
Court's Reasoning and Analysis
The court reasoned that although the staircase was safe for the vast majority of employees, it posed a material risk to Plaintiff due to his epilepsy. The employer's rule requiring Plaintiff to use the staircase to access his locker compounded an otherwise routine life risk into a workplace risk. The existence of a large void adjacent to the stairs further heightened the danger.
The court rejected the appellant’s argument that the risk was unrelated to the employer’s activities, emphasizing that section 2 of the 1974 Act imposes a duty to ensure the safety of all employees, including those with particular vulnerabilities. The court found that reasonably practicable steps—such as relocating the locker—were available and not taken.
The court held that the jury was properly directed on the relevant legal questions and that no issue of law was improperly left to the jury. It also rejected the submission that the Equality Act 2010 governed the safety issues, noting that the Act does not address workplace safety and does not reference the 1974 Act.
Regarding risk assessments, the court found it reasonable for the jury to infer that no suitable and sufficient assessment had been conducted or reviewed, given the absence of evidence to the contrary and the defence’s position that no assessment was necessary.
The court distinguished the facts from those in R v Porter, noting that the evidence here demonstrated a real and known risk to Plaintiff, unlike the speculative risk in Porter.
Holding and Implications
The court REFUSED the renewed application for leave to appeal against the convictions of Company A.
The direct consequence is that the convictions and sentencing stand. The court emphasized that the decision was fact-specific and does not establish a broad precedent. It clarified that the employer’s duty under section 2 of the 1974 Act includes ensuring the safety of employees who may be at particular risk due to personal vulnerabilities, where those risks are materially related to the employer’s activities. No new legal principles were created beyond the application of existing statutory duties and regulatory frameworks.