R v WM Morrisons PLC

Under section 2 of the Health and Safety at Work Act 1974, an employer’s duty may arise where its operations expose an individual employee to a real and material risk, even if the workplace is safe for most employees. An activity ordinarily associated with everyday life may become work-related where workplace arrangements require the employee to undertake it. The general duty extends beyond the particular matters listed in section 2(2) and is not confined to risks covered by a specific regulatory provision. Workplace safety duties remain distinct from equality legislation. The decision also confirms that a jury may infer the absence of a required risk assessment from the evidence and the parties’ cases.

WM Morrisons Supermarkets was convicted at the Crown Court at Gloucester on 2 February 2023 of failing to ensure employee safety under section 2 of the Health and Safety at Work Act 1974, and of offences concerning the making and review of risk assessments under the Management of Health and Safety at Work Regulations 1999. The charges arose after an employee with epilepsy suffered a fatal fall from a staircase which he was required to use to access his workplace locker. The company was fined £3.5 million on the section 2 count.

After the single judge refused leave to appeal, the company renewed its application. It argued that the risk arose from an ordinary staircase and a medical condition unrelated to work, that the issue belonged under the Equality Act 2010, and that the risk-assessment counts lacked sufficient evidence. The central issues were whether the staircase created a relevant workplace risk for this employee and whether the convictions could properly be left to the jury.

Disposition. The renewed application for leave to appeal was refused. The court agreed with the single judge’s conclusions.

1. Relevant risk under section 2. The fact that the staircase was safe for almost all staff did not remove the risk to the employee concerned. The company’s rule required him to use the stairs to reach his locker, and going to the locker was a work activity. An activity which may be routine in everyday life can be compounded or significantly altered by work requirements. The staircase therefore created a real and material risk to his health and safety.
2. Reasonably practicable measures. Section 2 of the Health and Safety at Work Act 1974 protects all employees. Where the employer’s operation puts one or more employees at risk, the duty arises and reasonably practicable steps must be considered. Moving the locker to the ground floor was a sensible and reasonably practicable measure. It would have enabled the employee to carry out his work without exposing him to the risk of falling.
3. Authority and statutory scope. The court distinguished R v Porter [2008] EWCA Crim 1271 because the evidence and facts were materially different. Porter established no principle beyond the requirement that the risk be real rather than fanciful or trivial. The court also referred to R v Chargot [2009] 1 WLR 1 in treating Porter as an exceptional case. The general duty in section 2 was not confined by the regulatory regime. Section 2(2) identified particular matters without prejudicing the generality of the preceding duty.
4. Equality legislation. The company’s position was not properly analysed as a reasonable-adjustments issue under the Equality Act 2010. That Act addresses discrimination and related matters, not workplace safety. The jury’s directions did not leave an issue of law for the jury to decide.
5. Risk assessments. On the counts concerning the making and review of risk assessments, the jury was entitled to infer that no assessment had been conducted or reviewed. Both experts had not seen or been provided with any assessment, and the defence case was that none had been necessary. Positive prosecution evidence was not indispensable.

The court emphasised that the facts were unusual and did not create a general precedent extending beyond the ordinary meaning and generality of section 2.

1. Court of Appeal (Criminal Division): On 22 May 2024, the renewed application for leave to appeal was refused: [2024] EWCA Crim 627.
2. Crown Court at Gloucester: On 2 February 2023, the company was convicted on three health and safety counts. On 17 March 2023 it was fined £3.5 million on count 1, with no separate penalty on counts 2 and 3.