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Games without frontiers – in the course of employment?
Casualty Aware 3
In recent years there has been an increasing trend for employers to arrange activities for its employees in the name of ‘team bonding’. The question arises, however, whether, when participating in those activities, the employees are deemed to be ‘at work’ for the purposes of health and safety legislation. This question was considered by the High court in the case of Reynolds v Strutt & Parker LLP in 2011, and arose again in a case handled more recently by Keoghs’ Casualty Partner Julian Dexter on behalf of Zurich insurance.
In Reynolds, the defendants organised an ‘away day’ which involved various activities at a Kent country park. The final event was a bicycle race in which a number of the defendants' employees participated, including the claimant. During the course of the race there was a collision between the bicycle being ridden by the claimant and a colleagues, the consequence being the claimant fell and sustained a severe head injury.
The claimant alleged not only that the defendants were negligent in their organisation of the event, specifically by failing to require participants to wear helmets, but that they were also in breach of a raft of duties under the various Regulations made pursuant to the Health and Safety at Work Act 1972. However, that Act makes it clear that such Regulations only apply when employees are ‘at work’ and S52(1)(b) expands on this, providing that: "An employee is at work throughout the time when he is in the course of his employment, but not otherwise.” In dealing with the allegations of breach of statutory duty therefore, the court first had to determine whether the claimant was in the course of his employment at the material time, such that the relevant Regulations applied.
The court concluded that the claimant was not in the course of his employment when participating in the cycle race. The judge concluded that the race, and indeed the whole event, did not constitute work activity, as it was an activity intended for enjoyment by the defendants' employees and did not serve to further their business. Hence the claimant could not be considered to have been in the course of his employment at the time. The Regulations did not apply and so the defendants could not be deemed to have been in breach of any statutory duty.
However, that was far from the end of the story. The defendants clearly owed a common law duty of care to the claimant and others participating in the events to the extent that, in broad terms, they were required to take, "such reasonable care as any reasonable employer would take (a) to ensure that employees were reasonably safe in engaging in the activities which the employer had arranged and (b) in the making and management of the arrangements that were being organised." The judge concluded that this duty of care included conducting adequate risk assessments, and implementing appropriate measures to address risks identified through that process.
In the event, the defendants were in breach of their duty of care to the claimant as they had not carried out a suitable and sufficient risk assessment. Had they done so, they should have identified the risk of a collision between bicycles and that of consequent injury to the participants in the race.
The logical implication was that all participants should have been compelled to wear helmets. The claimant therefore established primary liability against the defendants. However, the court went on to conclude that the claimant was contributorily negligent to the tune of two-thirds, on the basis that knowing helmets were available he chose not to wear one, and that he had contributed to the collision by riding aggressively and actively trying to force his colleague off the track and out of the race.
In Keoghs' case of FSJ v Discovery Communications, the issue arose in a rather different factual context. The defendants had organised a trip to Venice for a number of its employees, including the claimant. The schedule included both work-related activities such as workshops and training sessions, as well as ‘fun’ activities, one of which was a Dragon Boat trip on the canals. It was during the course of that activity that the claimant sustained an injury to her back.
It should be emphasised that the Dragon Boat trip was not a race. For all intents and purposes it was a leisurely paddle down some of Venice's more picturesque waterways, with a break in the middle to enjoy a cool glass of Prosecco. Nevertheless, the claimant alleged that the event gave rise to a foreseeable risk of injury, and that she had effectively been compelled to participate against her will - notwithstanding her concerns that she might suffer injury by doing so, bearing in mind that she had a history of back problems.
She alleged consequently that the defendant was negligent and/or in breach of statutory duty under the Management of Health and Safety at Work Regulations 1999 through failing to conduct a suitable and sufficient risk assessment of the Dragon Boat activity. She alleged further breaches under the Manual Handling Operations Regulations 1992, on the basis that rowing the Dragon Boat amounted to a manual handling operation which gave rise to a risk of injury and should therefore have been avoided or steps taken to minimise that risk. The defendants denied all allegations, specifically that the Regulations applied to the activity because it did not constitute ‘work’.
Both the defendant and Zurich, with whom Keoghs worked closely throughout, wished to defend the claim, and it proceeded to a two-day trial (on the issue of liability only). The claimant sought to distinguish the case from Reynolds on the basis that, as the prime purpose of the trip was furthering the business of the defendant, rather than a ‘jolly’ the trip as a whole constituted ‘work’. Moreover, she contended that the Dragon Boat activity was akin to work as participation was, in her case, compulsory.
The defendants argued that it was wrong to focus on the trip as a whole, but it was the nature of the specific activity, the Dragon Boat trip itself, that was relevant. It was clearly intended to be a fun activity, and bore no relation to the defendants' business. It was also denied that participation was compulsory; the claimant's manager and the organiser of the trip gave evidence stating it was made clear to the claimant that it was entirely up to her whether she took part or not.
Ultimately, the court was not called upon to determine the question of whether or not the activity was ‘work’ or whether the Regulations applied, as the claimant's counsel conceded the point in his closing submissions and withdrew the allegations of breach of statutory duty. Instead, he focussed upon the common law allegations to the effect that the defendants required the claimant to participate in an activity that carried a foreseeable risk of injury, that they made the activity compulsory or gave the claimant the impression that it was so, and that they failed properly to assess the risks posed by the activity, with specific reference to the claimant's pre-existing back problems.
The judge rejected all of these allegations, finding that participation in the Dragon Boat race was in fact voluntary and that the claimant was well aware of this. He also found that the defendants had properly considered the risks, which were minimal, and the claimant's managers had specifically queried with her whether she felt fit to participate. The claimant took part therefore, entirely of her own free will. The claim was duly dismissed.
Both cases highlight the fact that the courts will not seek to impose the manifold onerous duties under health and safety regulations on employers in situations where employees are not genuinely acting in the course of their employment. However, employers' duties at common law, not least the overarching duty to risk assess all activities undertaken by employees, remain stringent, and, as is shown by Reynolds, escaping liability under the Regulations does not necessarily mean that a finding of negligence at common law will likewise be avoided.
Of course, now that S69 of the Enterprise and Regulatory Reform Act 2013 has come into force, civil liability for breach of health and safety regulations has effectively been removed, and hence, in claims arising out of accidents occurring on or after 1 October 2013, the focus will shift firmly towards common law negligence. As to how the courts will apply this seismic shift in employer's liability law in practice, only time will tell.