Health and safety ruling is a smoking gun for employers

Employers who have relied on the defence against compensation claims that risks to health were within ‘safe levels’ need to revisit their health and safety policies.

Following a Supreme Court ruling that there is no low level for safe exposure to asbestos, the question is what other fatal dangers might lurk in the workplace.

Many health risks are – or should be – reasonably obvious and are quickly detected as the symptoms rapidly present themselves.

Asbestos was different – a silent killer that could take 30 years or more to painfully torture a victim to death.

The Supreme Court held that the responsibility for death lay with anyone ‘materially increasing the risk of the victim contracting the disease’.

The judgement was made in the case of Dianne Willmore, 49, of Wrexham, who died in 2009 after exposure to asbestos while a school pupil in the 1970s. Her family was awarded £240,000 compensation against her local council in Knowsley, Merseyside, for negligently exposing her to the killer dust.

The wider problem highlighted by the case is how does an employer safeguard against a risk that may not present itself as injurious or fatal for the best part of a lifetime?

Passive smoking is one condition that can slip in to this category as a smoking gun.

An employment tribunal case highlighted that risk should not only be assessed for the able-bodied but also employees who may have less obvious health conditions.

In the case, the tribunal heard that although workplace smoking was outlawed in 1997, the ban was lax at a community centre were Karen Whitehead worked. Her colleagues routinely smoked around her, even though she suffered from asthma.

She was sacked after taking 16 days off sick out of just 45 days working at the centre.

She was awarded £17,000 compensation for unfair dismissal even though she had worked for her employer for less than the normal 12 months because she was registered disabled because of the asthma.