A SCOTTISH home carer has won a landmark ruling at the Supreme Court in London which could help other injured workers.
Tracey Kennedy, 45, from Glasgow, suffered a serious wrist injury after slipping on ice while visiting a terminally ill client in December 2010.
A judge later ruled she was entitled to damages as her employer, Cordia, had not supplied the proper footwear but the decision was later overturned on appeal.
However, the original judgement has now been upheld unanimously by five Supreme Court judges, including two Scots, Lord Reed and Lord Hodge.
The case centred on whether employees working outside in dangerous wintry conditions should be supplied with footwear to protect them against the risk of injury from slipping on ice.
Kennedy’s lawyers at Digby Brown described the case as a landmark judgement which will not only help protect individuals working for the benefit of others in testing conditions across the country, but which further reinforced the need for employers to assess the risks faced by workers, and to introduce reasonable measures to avoid or reduce risks.
Cordia argued that Kennedy could have made the decision not to go out that night because conditions were too hazardous.
Judge Lord McEwan rejected this and accepted evidence that Kennedy was providing an essential service to a vulnerable elderly client who might otherwise have spent the night sitting in a chair, in pain, without her medication.
The court found that a relatively cheap over-shoe attachment was available and being used by other local authorities and employers. This would have provided grip when walking on ice and would have been effective in preventing the accident.
Lord McEwan said that the health and safety of people working in dangerous conditions in Scotland should be paramount, noting that “everyone has to live and work through winters” and that fundamentally “safety is to be levelled upwards”.
Cordia’s appeal against the ruling was unanimously upheld the following year at the Inner House of the Court of Session. Kennedy’s appeal against that ruling has now been unanimously upheld at the Supreme Court in London.
The judges found that Cordia was aware of the risks posed by ice as these had been identified in previous assessments in 2005 and 2010 and the firm had previous experience of home carers suffering such accidents.
They found that Lord McEwan was entitled to conclude that there had been a breach of management regulations.
Kennedy’s Solicitor, Iona Brown, said: “This is an important judgement which will help protect individuals working for the benefit of others in testing conditions across the country.
“As the original decision noted, Miss Kennedy was on an errand of mercy, helping a vulnerable elderly member of the community.
“No-one should be exposed to any unnecessary risk of injury through just doing their job.”
Cordia, which is an arms-length care services firm of Glasgow City Council, said it was “disappointed” by the ruling.
A spokesman for Cordia said: “Cordia believe health and safety is fundamental to all activities and take their responsibility seriously.
“A high level of training is put in place for staff and thorough risk assessments are undertaken.
“Cordia is, therefore, extremely disappointed with this decision and recognises the economic consequences this will have for not only Cordia and Glasgow City Council but also employers across Scotland and the UK.”
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