The opportunity for a claimant injured at work to rely on a statutory breach was reduced on 1 October 2013 by the Enterprise and Regulatory Reform Act (ERRA) 2013. Notably, strict liabil­ity previously present in regulations such as regulation 5 of the Provision and Use of Work Equipment Regula­tions (PUWER) 1998 will be removed. Additionally, those regulations which incorporate a defence of ‘reasonable practicability will now require the claimant to prove the failure to take the practicable steps on the part of the employer, whereas previously the burden rested firmly with the employer.

However, it is envisaged that a find­ing of contributory negligence will become more common, as the previous emphasis on a primary, and at times overwhelming, fault on the part of the employer created by a statutory breach will no longer survive.

Kennedy v Chivas Brothers Ltd [2013] CSIH 57

The accident

The claimant was a line operator in a bottling plant. Part of her duties involved pushing a trolley - a cage mounted on four small wheels, two of which rotate and swivel, on to which was loaded about 380kg - along a passageway into which machinery protruded. On the occasion of her accident, the wheels stuck, and in an effort to move the trolley through the limited space created by protruding machinery, the claimant took to pulling the trolley. As she did so, her hand, which was holding onto the side of the trolley, came into contact with one of the machines, causing her injury.

The defendants pointed out that the trolley was of an 'industry standard'. Post-accident, no defects were found, and no prior complaint had been made either by the claimant or her colleagues. A general risk assessment of all manual handling activities had been carried out, but not a specific one for the task performed by the claimant on that day.

The judge at first instance found that the task was `simple', and did not involve a real and foreseeable risk of injury. It was not reasonably practica­ble to deliver the goods on the trolley to the top of the bottling line other than by way of the trolleys, and the installation of an automated system would require substantial structural alteration. The claim failed.


On appeal the claimant was successful on the basis of regulation 4 of PUWER 1998, and regulation 40 of the Manual Handling Operations Regulations (MHOR) 1992. Regulation 4 of PUWER states that `every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the pur­pose for which it is used or provided'. It was established that the trolley was `work equipment'.

The appeal court held that the equipment must be suitable for the particular task for which it is used. `Suitability' is defined by reference to the test of reasonable foreseeability - the defendant will not escape responsibility unless he can show the circumstances of the accident were `unforeseeable' or `exceptional'.

The facts upon which the court relied in finding for the claimant were:

  • The trolley was heavily loaded.
  • The claimant was asked to move it along a passageway between two rows of machinery.
  • Her height was 5ft 3in and she would have had difficulty in seeing over the top of a fully laden trolley.
  • Machinery and waste bins protruded into the passageway `to a significant degree'. lt was necessary to change the direc­tion of the trolley on at least two occa­sions within a relatively cramped space.
  • The difficulty of manoeuvering the trolley was `clear and obvious'.

As such, the trolleys were not `so constructed... as to be suitable for the purpose' of moving a full load of boxes within the factory. It was reasonably foreseeable that an accident of the type suffered by the claimant might occur, as she was trying to negotiate a fully laden trolley through the gap in ques­tion, with wheels that had the potential to stick and require realignment.

The judge at first instance relied to too great a degree on the general suitability of the trolleys for a range of tasks, rather than the specific task in this instance. Pushing a trolley may be 'simple', but on the occasion of the acci­dent obstructions had to be negotiated, the trolley was loaded to a height that affected the operator's visibility, and the wheels have a tendency to stick thereby creating an obvious hazard.

In relation to the MHOR, the defen­dants raised the issue of reasonable practicability. The court held that they failed to adopt the sequential approach to the assessment of the risk. The court emphasised that the burden of estab­lishing that a step is not a reasonably practical one rests on the employer, for it is settled law that it is not the employ­ee's task to design the system of work.

On appeal there was no finding of contributory fault on the part of the claimant, for `momentary acts of inat­tention are to be expected, especially when employees are under pressure or performing repetitive tasks. For that reason, a finding of contributory neg­ligence should only be made in a clear case. Generally speaking this will be one where the employee has made a conscious decision to embark upon a risky course of action'.

Quite properly, the court held that the claimant was confronted with a problem which she tried to resolve.

There were no handles on the trolley, therefore she was obliged to hold it in the manner in which she did, with her hands exposed.


The decision underlines the impor­tance of the application of the Health and Safety Regulations enacted in 1992, and their subsequent amend­ments.

This case was another example of an employee being presented with an unsafe situ­ation as a result of the failings of the employer in not properly assessing the risks at work, and suffering injury through her attempt to resolve the problem the employers had created.

If one puts the changes into a commercial context, an employer who abandons the current principles of health and safety, starting with a suitable risk assessment, will soon receive a slap in the face from his insurers as they start to make pay­ments of damages arising from such a lax approach.

If you have any questions on Personal Injury please contact Helen Mandeville at

Source – Law Society Gazette


Calculating Maternity Pay  




It is important to know how much an employee due to go on maternity leave is to be paid and when the payments are due. It is also important to note that an employee on maternity leave is still entitled to all benefits of her terms and conditions of employment for example, if her contract states she can use a Company car for personal use as well as business, she is entitled to the benefit of the car on her maternity leave.

Key Phrases:

Qualifying Week:
The 15th week before the expected week of childbirth

SMP:  Statutory Maternity Pay

OML:  Ordinary Maternity Leave

AML:   Additional Maternity Leave


Statutory Maternity Pay:

When is an employee entitled to SMP?

  1. The employee has worked continuously for 26 weeks by the end of her Qualifying week. She will qualify if she does this and works only one day of her Qualifying week.
  2. The employee’s normal weekly earnings are not below the Lower Earnings Limit.
  3. The employee is still pregnant (or has given birth) 11 weeks before the start of the expected week of child birth.
  4. The employee gives her employer at least 28 days notice (or a reasonable amount of time in the circumstances) of the date she intends to begin her SMP.
  5. The employee supplies a certificate confirming her Expected Week of Childbirth (usually a MAT B1 form) either before the birth, no more than three weeks after the birth or if she has good cause for delay, as soon as reasonably practicable.

The employee may still be entitled to SMP from her employer if she has ceased work (she must qualify the above) for example, if the employee resigns or is dismissed, for any reason, before her SMP is due to start. This is a more complex area of law therefore advice is recommended.

Maternity Allowance

Non-eligible individuals may qualify for Maternity Allowance (MA). Individuals who do not qualify for SMP (for example, because they have left work before qualifying for SMP, have insufficient earnings or continuity of service, or are self-employed) may qualify for MA, which is a social security benefit paid by Jobcentre Plus.

The relevant period

The relevant period ends with the last normal pay day on or before the end of the Qualifying Week and begins after the last normal pay day at least eight weeks earlier.

  • In other words, to find the relevant period:
  • Take the last normal pay day on or before the end of the Qualifying Week. (If the employee has already given birth by then, take the last normal pay day before the week of birth.) That normal pay day is the last day of the relevant period.
  • Count back eight weeks from that day.
  • Take the last normal pay day before that date. The day after that pay day is the first day of the relevant period.

Note that, if no "normal pay day" is identifiable from the employee's contract or from the employer's normal practice, actual payment days are used.

How do I know what to pay?

The Employee’s normal weekly earnings are taken into account, these include anything that would normally be treated as earnings for National Insurance purposes for example, bonuses, commission, overtime, etc, as well as remuneration. The normal weekly earnings are calculated in 2 ways depending on whether the Employee is paid monthly or weekly:

  1. Paid monthly – the last 2 payslips before the end of the Qualifying week are used. Divide the total earnings on the last 2 payslips by the number of months, times this by 12 to get the Employee’s yearly pay and divide by 52 to get the normal weekly earnings.
  2. Paid weekly – the last 8 payslips before the end of the Qualifying week are used. Divide the total earnings on all 8 payslips by the number of weeks earned to get the normal weekly earnings

When do I start paying the SMP?

An Employee’s SMP will normally start on the eleventh week (providing they’ve left work) before the Expected Week of Childbirth unless the Employee notifies the Employer otherwise.

If the birth occurs before this date or the Employee is off work for a pregnancy related illness then the SMP will start or after the fourth week before the Expected Week of Childbirth.

How do I pay SMP?

The Employee is entitled to SMP for a maximum of 39 weeks. SMP is payable at two different rates, namely:

  1. During the first 6 weeks, a rate equal to 90% of the Employee’s normal weekly earnings are payable. This is known as the “earnings-related rate”;
  2. During the remaining 33 weeks, it is paid at either the weekly standard SMP rate (currently £136.78) or earnings related rate if this is less than standard rate SMP.

When will SMP stop?

SMP will no longer be payable upon the following:

  1. Once the 39 weeks end;
  2. The Employee returns to work permanently before the end of the SMP;
  3. The Employee is detained in custody or is sent to prison;
  4. The Employee dies;
  5. The Employee starts a new job with a new employer after the birth.

For any further information on this top please contact Rebecca Hardy





It has been nearly 3 months since fees were in introduced to the Employment Tribunal.  On 18th October the Ministry of Justice published Employment Tribunal Receipt Statistics for July to September.  The key findings were:


  • Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends.
  • Monthly data on receipts are volatile and any interpretation should be treated with caution. This volatility is mainly driven by irregular receipts of multiple claims cases which can involve over 100 receipts per case, and occasionally over 1,000.
  • Between January – May 2013 an average of 17,000 receipts per month were received into the Employment Tribunal by HMCTS.
  • In June there were 25,000 receipts, and a further 17,000 in July 2013. This sudden increase may be explained by people choosing to enter a claim prior to the introduction of fees.
  • In August 2013 there were 7,000 receipts, and 14,000 in September 2013. 


Whether the introduction of fees will have the effect of reducing the number of claims is still unclear because of the distortions due to delays in processing some claims and the possible effect of people bringing claims before fees were introduced to avoid fees.

The introduction of fees have been challenged by UNISON and recently Dave Prentice said that “The latest Government statistics show a significant drop in the number of individual claims being taken to employment tribunals, which is precisely why UNISON is challenging these unfair fees.  Putting a price on justice is immoral and allows unscrupulous employers to ride roughshod over the employment rights of their workers.” See UNISON

Unison, with the backing of the Equality and Human Rights Commission, submitted an application for judicial review of the introduction of employment tribunal fees. The hearing which took place in the High Court on 22nd and 23rd October 2013 went part-heard and will resume on 4th  November 2013.

The issue of employment tribunal fees was also raised in Prime Minister’s Question Time in 23rd October  2013 and the following was reported in Hansard: 

Diana Johnson (Kingston upon Hull North) (Lab): Does the Prime Minister think it fair that a sacked pregnant woman will now have to pay £1,200 to take a maternity discrimination case to an employment tribunal?

The Prime Minister: It is very important for people to have access to employment tribunals, and they do under this Government. One thing that we have done is ensure that people do not earn such rights until they have worked for a business for two years, and I think that that is the right approach.

This exchange highlights the need to know the current legal position as while the point was not taken up, a maternity discrimination claim does not require any qualifying length of service in order to bring a claim. It is essential that employers find out the correct legal position and seek legal advice when required.

If you have any questions about this article or employment law generally please contact Sarah Everton at   


Know your employees..

Many Managers see HR and Employee Engagement as a hindrance to their day to day duties when in fact, a productive, happy and economic workforce surely will only benefit that manager and the company.

I’m regularly asked to advise how to “get rid of” an employee because they’re not performing. When I ask what discussions have been had with said employee I’m often told none or very few. I then have to explain what a capability procedure is, how long it takes, the risks and other options available. At this stage I’m often asked if redundancy could be used instead- the answer is no.

Whilst it’s acceptable to expect employees to know what their job role is providing a thorough induction process, job description and training programme has been given, employers shouldn’t sit back and wait for underperforming employees to raise their head.

A few years ago I was involved in exactly the situation described above but what happened will  always stand out to me. The employee had been with the company for just over two years and over the last three to four months their performance had dropped significantly, arriving to work late, not completing tasks on time and generally being a bit of a nuisance.

I won’t reiterate the advice I gave to the company but I will in a snapshot explain what happened (the employee will be referred to as Mr B).

I met with the employee and raised all the concerns the company had and asked quite frankly what was going on. At first Mr B shrugged his shoulders and to be honest trying to engage him in the conversation was like getting blood from a stone...I was however a woman on a mission and I wanted to know what was happening.

Whether it’s boredom, personal problems, workplace problems, complacency or health, there’s always a reason for a sudden drop in performanc., Whether you find it or not is a different story.

It would have been easy to set him targets and send him on his way following a performance plan but chances are, whatever the cause, it would continue and we’d be back in the same situation six weeks down the line (providing the employer hadn’t jumped the gun and dismissed).

I asked again what had been going on asking him to be completely honest and use the meeting to have a moan, as a counselling session, a self appraisal...whatever he wanted. After some pressing Mr B broke down, a man in his late forties crying.

It transpired Mr B’s partner was suffering with post natal depression following the birth of their third child. Mr B wasn’t sleeping and was trying to raise a newborn, work full time and generally being the man of the house whilst looking after his very unwell wife. A pattern quickly started to emerge as the drop in performance fitted perfectly with the personal issues he’d be suffering with at home...that was the reason.

Aside from the above and the numerous difficulties Mr B had to deal with he brought the meeting back to his performance. He apologised over and over for his drop in performance, explaining how much he valued the company and his job. He also apologised about not telling management sooner but when asked why he didn’t he replied...nobody asked.

Mr B started to talk about his old company and a number of ideas he’d suggested and implemented to help the production team follow and complete tasks. Although I was confident I would get to the bottom of the performance issues I was actually surprised, not once did I expect to hear what Mr B was saying.

Following the meeting a number of arrangements were put in place enabling Mr B to work altered hours, time off was given for doctor’s appointments and counselling sessions offered.  Of course targets were given regarding his performance and a follow up meeting scheduled for six weeks time as this was the initial problem but I expected (and hoped) for a dramatic change.

His suggestions were voiced with management and whilst his performance didn’t improve overnight (and nor would I expect it to) the company could see real ambition and hope for Mr B. From one meeting the company had gone from dismissing the employee to offering additional support, altered hours and holding business strategy meetings following his ideas.

The ideas were implemented, with some tweaking, and a real benefit to the company was noticed.

Eight months on MR B was promoted to supervisor.

This was a real learning curve for the company and an example I use quite regularly. I know employees will underperform and such conduct should be managed appropriately. Not every case will be a success story but surely it’s better to know, or at least attempt to find, out the reason behind the performance before you decide what you want the outcome to be.

Speak with employees, they are humans like you and I. Manage and discipline them yes but take the time to understand the situation, dig deeper and you might just have a diamond in the rough waiting to be discovered.  

If you would like to know more on this subject please email Rebecca Hardy


Pregnancy and Maternity Leave continued.

Key Rights for a pregnant employee are:

  • Time off for antenatal appointments;
  • Additional Health and safety protection while pregnant and breastfeeding;
  • Up to 52 weeks' maternity leave. Employees are entitled to one year's statutory maternity leave (made up of ordinary maternity leaveo (OML) and additional maternity leave (AML), regardless of length of service;
  • Statutory maternity pay (SMP) for up to 39 weeks; 
  • The right to return to the same job (in most cases);                                                 
  • Priority for alternative employment in redundancy cases;                                       
  • The right to request flexible working conditions on return to work;                         
  • Protection from dismissal, detriment or discrimination by reason of pregnancy or maternity.

Key Dates for your diary...

Now you know the key rights of a pregnant employee, you must familiarise yourself with the key dates. The first being the protected period which begins when a woman becomes pregnant and ends:

  • If she has the right to Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML), at the end of the AML period or (if earlier) when she returns to work after the pregnancy.               
  • If she does not have that right, at the end of the period of two weeks beginning with the end of the pregnancy.

Expected week of childbirth (EWC)

The EWC is the week, measured from Sunday to Saturday, in which childbirth is expected to occur. It will be confirmed on a certificate (MAT B1) given to the employee by her doctor or midwife. Many of the employee's rights are calculated by reference to her EWC, regardless of whether birth in fact occurs earlier or later.


Childbirth means the birth of a living child or a still birth after 24 weeks of pregnancy.

Compulsory maternity leave

All employees must take a minimum of two weeks' maternity leave starting with the day on which childbirth occurs or four weeks for factory workers. An employer will be guilty of a criminal offence if it allows an employee to work during compulsory maternity leave.

Ordinary maternity leave

OML is a period of 26 weeks' leave available to all employees, regardless of length of service, who give birth and comply with a number of notification conditions:

  1. Informing employer of pregnancy by the 15th week before EWC or;
  2. Her EWC; and

The above only applies to employees whether they are full time or part-time, fixed-term or permanent, and is not available to the self-employed or those who come within the statutory definition of worker. 

Additional maternity leave

AML follows immediately after the end of OML and lasts for up to a further 26 weeks, giving a total entitlement of 52 weeks' statutory maternity leave. Since 1 April 2007, all employees who qualify for OML have automatically also qualified for AML, regardless of their length of service.

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