Henser-Leather v Securicor Cash Services Ltd

Employers must assess workplace risks and provide suitable personal protective equipment where existing controls do not adequately reduce a serious risk to health or safety. The obligation is not avoided because the risk is statistically lower than in comparable work, or because the equipment has disadvantages such as discomfort, bulk or limited protection. Suitability must be assessed by reference to the risk, the workplace conditions and ergonomic requirements. An employer’s failure to conduct the required assessment and provide suitable equipment may constitute a breach of statutory duty. The court will generally respect first-instance findings based on evaluation of evidence, particularly where the judge was entitled to rely on expert evidence.

The claimant, a cash-collection employee, was shot while working alone and claimed damages from his employer. The Leeds County Court found a breach of common-law duty in failing to assess and make body armour available, but concluded that the claimant would not have worn it and that the Personal Protective Equipment at Work Regulations 1992 did not apply.

On appeal, the employer challenged the finding of common-law breach. The claimant challenged the conclusions concerning the voluntary use of body armour, causation and statutory liability. The central issue was whether the Regulations required the employer to assess the risk and ensure that suitable body armour was provided.

1. Appeal allowed. Judgment was entered for the claimant, with damages to be assessed. The appeal was allowed unanimously, Lord Justice May and Lord Justice Tuckey agreeing with Lord Justice Kennedy.
2. The Personal Protective Equipment at Work Regulations 1992 applied to body armour. Regulation 4(1) required the employer to ensure that suitable personal protective equipment was provided to employees exposed to a risk to health or safety, unless that risk had been adequately controlled by equally or more effective means.
3. Other protective measures, including parking arrangements, training and instructions not to resist robbers, did not adequately reduce the claimant’s risk to the level ordinarily experienced by members of the public. The risk of grave injury or death from firearms therefore fell within regulation 4.
4. Regulation 4(3) prescribed criteria for suitability. It did not remove the primary obligation in regulation 4(1) merely because equipment might have disadvantages or might fail to prevent every possible injury. The available evidence entitled the judge to find that suitable body armour could have been provided in 1995.
5. Regulation 6 imposed a clear obligation to assess the residual risks, define the characteristics required of protective equipment, and compare those characteristics with equipment available. The employer had made no such assessment.
6. Regulation 10 required the employer to take reasonable steps to ensure proper use and required employees to use equipment provided. The judge’s finding that the claimant would not have worn body armour if left entirely to his own choice did not answer the statutory question, since the employer had taken no steps under regulation 10(1).
7. The court declined to reopen the judge’s evidence-based findings on effectiveness, ergonomics and increased risk. The decision was specific to the evidence concerning the incident and the period in question.

• Court of Appeal (Civil Division): Allowed the appeal from the Leeds County Court and entered judgment for the claimant, with damages to be assessed.
• Leeds County Court: His Honour Judge Hawkesworth QC dismissed the claim for damages, although he found a common-law breach in failing to make body armour available. Permission to appeal was refused by the Court of Appeal.