Matthew Gunn had been employed by Morrisons at their Tewkesbury supermarket for ten years and was known to suffer from epilepsy. He tragically died after suffering a suspected seizure on the shop stairway and falling to the floor below.
Morrisons was prosecuted by Tewkesbury Borough Council and denied three health and safety offences:
A fourth charge of failing to provide requested contact details to the Council was admitted.
After a three-week trial, Morrisons was convicted of all counts and sentenced to a £3.5 million fine plus costs.
Morrisons was aware of Mr Gunn’s condition as he disclosed it on applying to join the company and suffered many seizures while at work. It was accepted by the prosecution that Morrisons had taken some steps to adapt Mr Gunn’s working conditions and provide a safe working environment, however, opportunities were missed to ensure his safety.
Mr Gunn worked on the ground floor of the store, but his locker and the staff canteen were on the first floor, reached by stairs or a reportedly unreliable lift, which he did not like to use. Store policy meant that personal items had to be locked away when on the shop floor and therefore Mr Gunn had to access his locker several times a day.
The potential risk to Mr Gunn of a seizure on the stairs and the danger it posed to him had been raised at a meeting between Mr Gunn, his mother, the store personnel manager, and the occupational health officer. Positively, it was suggested by the occupational health officer that Mr Gunn’s locker could be moved downstairs, and he could use his staff discount at the ground floor public café, to reduce his need to use the stairs. However, this action was not taken, and three months later Mr Gunn suffered the tragic fall.
There was no dispute that Morrisons, aware of Mr Gunn’s epilepsy, had initially engaged in a level of risk assessment but that the continuing duty had not been met. This highlights the fundamental point that risks are not static and need to be considered on a suitably regular basis. It is not sufficient to simply identify a risk, or even address it with control measures, and subsequently not review it on a regular basis and reflect changes.
Potentially, this case may reflect a blind spot in organisations’ thinking in that they will have in place auditing regimes, perhaps on an annual basis, to review risk assessments relating to assets such as machinery, but do they extend these to their most valuable assets, their employees?
With positive steps enabling more and more colleagues into, or to remain at, work with medical conditions this highlights the importance of obtaining information to assess risks relevant to them, specifically as well as generally. Further, there is a need to continue to assess the risks on a reasonably regular basis, and appropriately record information, particularly around changes implemented. Finally, if changes are identified, to properly and promptly implement them, the Morrisons case highlights that steps were identified three months before Mr Gunn’s death but had not been implemented.
The applicable health and safety legislation considered here does properly provide a defence if organisations can show that they did all that was reasonably practicable in assessing and addressing a risk. Unsurprisingly, the more simple and straightforward a corrective step might be, the greater the expectation that it would be adopted and be interpreted as unreasonable for an organisation not to have done so. In the Morrisons case, it was accepted that workplace adaptions had been made and the company had taken steps to make the workplace safer for Mr Gunn, but the failure to change locker position to, and provide food on, the ground floor were simple steps that were not unreasonable for the company to have taken in the circumstances.
The “warning to all employers” trumpeted by Tewkesbury County Council in this matter is relevant in respect of a reminder that risk assessments must always be dynamic and regularly reviewed. It may be a valuable exercise in considering those in place around employees with medical conditions and whether they are up to date and properly reflect the tasks they currently undertake and their personal circumstances.
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