Failure to Carry Out Risk Assessment Resulted in Breach of Duty of Care Owed to Employee
A recent Court of Appeal decision has highlighted the importance of employers following their own policies and procedures in order to protect their position in the event of litigation.
The Facts
The case of Cunningham v Rochdale Metropolitan Borough Council concerned a school for children exhibiting challenging behaviour. An assistant head teacher at the school was assaulted twice by a pupil, with the second assault causing a fractured cheekbone, psychiatric injury and the teacher's retirement. The teacher alleged the local authority (his employer) was in breach of its duty of care to him by allowing the pupil to return to the school without carrying out a risk assessment, arranging a return-to-school interview and conducting a restorative justice meeting following the first assault. This was all action required to be taken under the school's own procedures.
Breach of Duty of Care
The Court of Appeal found that, because of the school's failure to take the action summarised above, the local authority was in breach of the duty of care it owed the teacher to provide a safe system of work.
The school was heavily criticised for failing to follow its own procedures, which required it to carry out a suitable and sufficient risk assessment to establish what reasonable steps should be taken to provide a safe system of work. The local authority owed a duty of care to the teacher and was in breach of this duty because the school failed to follow its own procedures.
However, in order to succeed in a negligence claim it is necessary to show that the breach of the duty of care caused the loss complained of. This is where the teacher's claim failed - essentially it was not possible to show that, had the measures above been taken, the second attack and the resulting loss would not have occurred.
Comment
Whilst the teacher was unsuccessful in his claim, this could be described as a hollow victory for the local authority. It is easy to imagine another case on similar facts where the outcome could have been very different, if causation could be established.
The case demonstrates the importance of employers having regard for, and thinking meaningfully about, policy requirements and risk assessments. Where specified action is expressly required under a policy or procedure, the employer will be opening itself up to unnecessary litigation risk if the procedure is ignored. Likewise, risk assessments should be considered to be live documents requiring regular review and updates as different risks are identified and mitigated. The judgement noted that employers are required to make a competent attempt to identify risks and should not consider completing risk assessments as a mere tick-box exercise.
If you have any questions, please contact Ellen Netto in our Employment Law on 07384 812 798, or complete the form below.