3rd February 2015

Pole-Axed, or, when is a person at work not at work?

When people are injured at their workplace due to unsafe premises or unsafe equipment, they could be forgiven for thinking that they have a fairly clear claim.  Often this is the case.  However, the statutory duties which employers have tend to be restricted to workplaces, and liability for faulty equipment is generally limited to “work equipment”.  Here lie a few pitfalls, as it is not always straightforward to decide whether somebody is at work or not, and whether the equipment he is using is “work equipment” or not.

In the last few days a case has come before the courts where a chef employed in a holiday park and staying in one of the holiday lodges was injured when a wardrobe pole fell on him.

The facts of the case were that the chef had been staying in a caravan provided by his employers.  During the winter of 2011 the pipes in the caravan froze, and it was agreed that he could stay in one of the lodges which would normally be occupied by customers.  He did not have to stay there and could have lived somewhere else if he had wished, but obviously it was convenient to live in the lodge, and the cost was deducted from his salary.  He agreed with his employers that he would move out if a customer required the lodge.

A few months later his employers told him that a customer wanted to occupy the lodge, and he was asked to move out.  Accordingly he began to clear out the cupboards, and in particular cleared out a metal pole from which hung articles of clothing.  The pole was not the correct size for the wardrobe, and had not been fitted properly.  Whilst he was removing the clothing the pole fell and injured his foot.

The chef sued his employers for compensation.  He followed the statutory duties closely, saying that the accident happened within a workplace whilst he was at work, and that the wardrobe pole was work equipment provided by the employers for use by employees at work.  He said that the lodge was a workplace, because employees worked in the lodges when they were servicing customers’ requirements and generally looking after them.  He was at work when he was clearing out the lodge, because he was obeying an instruction given to him by his employer in the course of his employment, and was not clearing out the lodge just for fun.  As to the wardrobe pole, the chef said it was clearly work equipment, as it was for use at work and he was working when he was using it.

The claim failed all down the line.  In the first place, the court held that the lodge was not a workplace, but simply a place where the chef lived under a separate agreement with his employers.  If he had been forced to live there as if in a “tied cottage”, it might have been different.  Secondly, he was not working when the accident happened, but was simply removing his possessions from a wardrobe.  He was not told to do this by his employers under his contract of employment, but because of the separate agreement they had about his occupation of the lodge.  Finally, the wardrobe pole was not work equipment.  It had been placed in the lodge for the use of paying guests, and had nothing to do with any duties at work.

So, a sad case for the chef.  He might have done better if he had simply sued his employers as landlords who had allowed a tenant to be injured by defective premises let to him.  Perhaps there was a reason, not reported, why that course of action was not possible.  As it is, this case is another example of how careful one has to be before bringing actions under the usual Health and Safety Regulations.

Richard Godden
Partner – Personal Injury/Dispute Resolution



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