Morrisons loses appeal after epileptic worker’s death

Supermarket chain Morrisons has lost a bid to overturn convictions for health and safety failures after an epileptic employee died following a fall from a staircase during a seizure. Matthew Gunn died 12 days after suffering catastrophic head injuries at the WM Morrisons store in Tewkesbury, Gloucestershire, in September 2014. The company was fined £3.5 million in March last year after it was convicted of three health and safety offences and it admitted a fourth charge. The Court of Appeal judges dismissed Morrisons' appeal stating steps ‘could have been taken’ to mitigate the risks posed to Mr Gunn. We’ll ask a health and safety lawyer about the lessons to be learned from this case.

The BBC reports on this and summaries the facts of the case. Matthew Gunn was a shelf replenisher who regularly used the staircase to access his locker on the first floor of the Tewkesbury supermarket, where he stored his belongings in line with company policy. He never regained consciousness following the fall on 25 September 2014 and died on 7 October that year. Mr Gunn's mother told Gloucester Crown Court he died three-and-a-half months after she warned managers of the risk to her son due to his frequent seizures.

Representing Tewkesbury Borough Council, which brought the prosecution, Richard Atkins KC, said there "was nothing wrong with the outcome of the case". He said Mr Gunn's locker had been moved upstairs from the ground floor of the store without a risk assessment being carried out.

Richard Matthews KC, for Morrisons, described the case as “tragic” but said a “control measure to forbid Matthew from using the stairs” was not an option. He said: “No one can or should suggest that every staircase, fixed staircase, in a workplace, with a lift, has to have a rule that epileptics who may have a severe epileptic seizure are not permitted to use it.”

Refusing the appeal bid, Lord Justice William Davis, sitting with Mrs Justice Cheema-Grubb and Judge Dennis Watson KC, said: “There was ample evidence that the conduct of the company exposed Matthew Gunn to a real risk. The event that led to Matthew Gunn’s death was one that had been feared by his mother, his colleagues and the company’s occupational health officer. All these fears were made known to the company.”
So, let’s get a view on this case. Zoe Betts is a health and safety lawyer and earlier she joined me by video-link from Manchester. So, what could the company have done better in this case?

Zoe Betts: “I think the evidence in this case demonstrates that Morrisons were on notice of Matthew Gunn's epilepsy. They knew he had that condition, they had done a specific risk assessment but there had also been previous incidents where, due to his condition, he'd had seizures and had fallen at work, including on staircases and, in fact, just a few months before his fatal fall his mother had been in to the store in Tewksbury where he worked to indicate that she was concerned that his condition could give rise to serious risks to his health and safety while at work. So I think given that Morrisons were on notice of his condition and, particularly, the previous incidents and his mother's concerns, I think the courts’ finding, initially the jury convicting the company and then more recently the Court of Appeal rejecting leave to appeal, I think this demonstrates that the company had not proven on the balance of probabilities that it had taken all reasonably practicable steps to mitigate the risk to Matthew. Specifically, what do I mean by that? Well, my understanding is that his locker was on the first floor and it required him to either use the lift or use the staircase. He went to that locker regularly throughout the day so there were multiple opportunities when he could potentially have a seizure and fall down the stairs. I would suggest that it was reasonably practicable in the circumstances, and on the evidence, for that locker to have been on the ground floor. That would have eliminated, or at least significantly reduced, the risk of him having to travel up and down the stairs regularly and, of course, it could have been discussed with Matthew that he need not take the stairs at all. If there was a lift within the store then, perhaps, it was a reasonable control measure to say that Matthew should use the lift and avoid the stairs altogether. That would, again, significantly reduce the risk of harm in the event that he had a seizure whilst travelling to that locker. But primarily, I'm not convinced the locker needed to be on the first floor at all.”

Joe Glavina: “The employer in this case is, of course, a household name and there will be plenty of big employers looking at what happened in this case and thinking, perhaps, that could have been us.”

Zoe Betts: “I can understand there being some consternation and concern about this sort of case, especially with clients with large workforces. How are they ever really going to keep on top of individual medical conditions? But they do need to go some way towards understanding what those conditions may be. First of all, they need to know about them. So you need to encourage your employees to be open with you about medical conditions which could affect them at work and create risks to their own health and safety, or others’ and then I think you need to take specialist input. So many organisations will have an occupational health provider either in-house or external. They need to be involved in the process in determining what reasonable adjustments does this individual need and reasonable is important here. It has got to be proportionate, it's got to be something that the employer can do. If it is simply impossible for that person to be at work, or it would involve disproportionate measures, well, then that's something for the employer to consider and individual discussions would need to be had with that worker. But to the extent that reasonable adjustments can be made, then that is the outcome of the risk assessment process, the dialogue with occupational health specialists and better interaction, in my view, between HR departments, and H&S departments. Yes, of course, there is a concern over spreading sensitive data, or confidential information, relating some to somebody's medical conditions but, equally well, that is necessary if we want to keep that person in work and keep them safe. So ensuring that knowledge which might otherwise be locked within a personnel file can be discreetly and appropriately shared so that that then finds its way into a safe system of work and a suitable risk assessment, in my view, has to be the right way forward.”

That case is covered in some detail in IOSH magazine in their article: ‘Morrisons’ £3.5m fine is a warning to all employers says council’. We have included a link to that in the transcript of this programme for you.

LINKS
- Link to IOSH magazine article: ‘Morrisons’ £3.5m fine is a warning to all employers says council’