Slippery slope

The House of Lords in a decision on the applicability of the Provision and Use of Work Equipment Regulations 1998 ('PUWER') has restricted the protection offered to employees injured by defective equipment in the course of their employment. Good news for employers perhaps, but also a common sense decision, appearing to remove what would otherwise be strict liability for injury caused by defects in equipment which is outside the control of the employer.

The case raises wider issues, and the decision has interesting implications for areas such as employee vehicles, which are frequently used for work purposes.

In Smith v Northamptonshire County Council [2009] UKHL 27, the law lords had to decide whether equipment supplied by a third party and not within the control of the employer would be considered to be 'work equipment' (Reg.2(1)) and 'provided for use '¦ at work' (Reg.3(2)) for the purposes of determining the employer's liability in a claim pursued under PUWER (see Solicitors Journal, 153/20, 26 May 2009).

The claimant was employed by the council as a driver and carer. Part of her duties required her to collect people from their homes and deliver them to a day care centre. The claimant had collected one wheelchair user for a number of years and used a wooden ramp (provided by the NHS some ten years previously) to help the individual gain access to and from her property. While manoeuvring the wheelchair on the ramp, the edge of the ramp crumbled causing the claimant to fall and sustain injury.

The claimant sought damages from the council under PUWER on the basis that the ramp was 'work equipment' as defined by Reg.2, and therefore strict liability applied under Reg.5(1) because the ramp was defective (see the Court of Appeal decision in Stark v The Post Office [2000] PIQR P105 (a latent defect or impracticability in maintenance is no defence)).

The council did not own or provide the ramp but they had inspected and assessed it from time to time. There were no obvious signs of disrepair.

Specific nexus

In Smith, Lord Mance ruled that 'some specific nexus (beyond the mere fact of use) is required between the equipment and the employer's undertaking, before the employer comes under the strict responsibilities imposed by the regulations'.

The council did not have any responsibility or right to repair the ramp; it was no more than part of the environment which the claimant faced when performing her employment duties away from the council's premises, and so, by a majority decision, the claim failed.

The case on the face of it clearly makes good sense '“ why should an employer face strict liability for a defect in equipment that they didn't/probably couldn't have known about, when the equipment in question isn't owned or maintained by them?

Employee's obligations

This brings us to the question of employers' liability for road traffic accidents which might be attributed to defects in vehicles owned by employees but used for their employer's work. Because of the strict liability imposed should PUWER apply, it would be sensible for employers to ask for copies of MOT certificates and preclude use of own vehicles where an employee cannot or will not confirm that their vehicle is regularly serviced and maintained and is roadworthy.

Internal policies should also actively require employees to ensure that before every journey they make basic roadworthiness checks (e.g. lights and tyres), and stop and seek competent assistance should any defect affecting roadworthiness occur during any journey, until it can be checked and roadworthiness verified.

UNISON's Working Alone Health and Safety Guide (https://www.unison.org.uk/ acrobat/10943.pdf) seems to assume that employers will be liable if the employee, using their own car for work purposes, finds that their vehicle is defective. Their guidance says: 'Low pay in the public sector could mean that some vehicles are poorly maintained'¦ Employers have a responsibility to ensure that the car used is suitable, even when the employee uses their own car.'

Smith, very sensibly, seems to reassert the obvious obligation on the employee as the owner of the vehicle to ensure roadworthiness '“ not the employer who has no power to undertake checks and repairs of such vehicles.

Employer's responsibility

A word of caution though: absent strict liability doesn't mean that employers won't have liability for negligence and in the circumstances a prudent employer, wishing not only of course to avoid the risk of an accident in the first place but also to avoid liability for the consequences of such an accident, should still take reasonable steps to verify the roadworthiness of vehicles which they don't own and which are to be used for work purposes, and indeed the competence of the person driving it. As a minimum they should require proof of:

• MOT on an annual basis;
• insurance '“ to verify that it covers the individual to drive and covers use for business purposes; and
• current paper licences '“ on a regular basis to verify, on an ongoing basis, competence of the driver. The licence will of course identify endorsements for driving offences which might cause a prudent employer to question whether this individual should in fact be seen as competent to drive for work purposes.

Employers should also remind employees of their obligation to check the roadworthiness of their own vehicle (and where relevant adverse weather conditions) before any journey. Employers could arguably also make sure that they have procedures in place to ensure they know where each employee is going and, when on journeys undertaken for work, that the employee has access to a mobile phone (to enable them to stop and seek assistance in the event of an accident).

There are practical issues regarding the prudent checks recommended here '“ but there is nothing like refusing travel expense claims in the absence of production of the documents to crystalise the mind of the employee and enforce production.