Baker v British Gas Services (Commercial) Ltd & Anor

An employer undertaking periodic safety inspections of electrical equipment owes its employees a duty to perform those inspections competently where they may later work on the equipment. A policy requiring work to be carried out dead does not discharge that duty or excuse failure to detect an obvious hazard. Under regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, tortious liabilities connected with an employee’s contract, including liabilities arising from a pre-transfer breach causing post-transfer injury, transfer to the transferee. An electrician does not act contributorily negligently merely by lowering a light fitting to investigate a possible plug-and-socket connection before isolating the entire circuit, where that practice is reasonable in context and the particular danger is unforeseeable.

The claimant suffered severe brain injury after being electrocuted while working on a ceiling light during his employment with British Gas Services (Commercial) Ltd. The light casing had been made permanently live by a wiring error introduced during the original installation by J & L Electrics (Lye) Ltd.

The preliminary liability issues were whether J & L was responsible for the original wiring defect, whether the defect should have been detected during periodic inspections undertaken before the claimant’s employment transferred to British Gas, whether liability transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006, and whether the claimant was contributorily negligent.

1. Liability for the original defect. The wiring error was more likely than not introduced during the 2004 installation. The evidence concerning the original installers and testing was unreliable, and the original ballast and fitting provided no likely explanation for later rewiring. J & L was therefore liable.
2. Employer’s duty. A fundamental employer’s duty is to take reasonable steps to avoid risks of injury to employees. CCES had undertaken periodic safety inspections intended to establish whether the electrical installation remained safe for persons maintaining it. That duty plainly extended to the claimant and his colleagues. A properly conducted 2010 inspection would have detected the defect, and the failure to do so was a breach.
3. Work-dead policy. The employer’s policy did not absolve it from liability. Employees might contact the light fitting before isolation, and the policy did not remove the obligation to detect and remedy an obvious hazard. The claimant’s compliance with the policy was relevant to contributory negligence, not to the existence of the employer’s duty.
4. TUPE liability. Regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 transferred rights, duties and liabilities under or in connection with the claimant’s employment contract. This included tortious liabilities, whether accrued or contingent. A breach before transfer which caused injury after transfer therefore imposed liability on British Gas. The court applied the principles in Martin v Lancashire County Council and Bernadone v Pall Mall Services Group Limited & Others [2001] ICR 197.
5. Contributory negligence. The defendants failed to prove that the claimant’s conduct fell below the standard expected of a competent electrician. It was reasonable to investigate whether the fitting had a plug-and-socket connection before isolating the whole circuit. Use of a volt stick was not shown to be mandatory, and the claimant could not reasonably foresee that the fitting casing was live. No contributory negligence was established.
6. Disposition. Both defendants were liable for the claimant’s damages, to be assessed. J & L was apportioned 75% of the responsibility and British Gas 25%. The claimant recovered on a full-liability basis against each defendant.

First-instance liability judgment. The court determined liability as a preliminary issue and directed that damages be assessed.