OC 207/3
Release date: 18.08.09
Review date: 18.08.12
Author unit/section: Operational Strategy Division - Services, Transportation and Safety Unit
Target audience: All HSE inspectors, All HSAOs, All LA inspectors
This OC provides advice to inspectors (HSE and LA) on the application of regulations 12(1), (2) and (3) of the Workplace (Health, Safety and Welfare) Regulations 1992 to the prevention of slips incidents, particularly through the installation of slip-resistant floor finishes.
Regulation 12 states:
Under Regulation 12 employers must, in a particular workplace under their control, ensure certain requirements in connection with floors or the surfaces of traffic routes. Regulation 12(1) is a general duty involving strict liability, and is concerned with the suitable construction of a workplace floor for use, while regulation 12(3) is a specific duty, qualified by SFAIRP, directed at obstructions and substances which might cause slips, trips or falls.
In Ellis v Bristol City Council, [2007] ICR 1614 CA ([2007] EWCA Civ 685), the Court of Appeal has considered the standard required of employers in relation to the condition of floors and traffic routes under Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992. A number of factors that were relevant in Ellis may help to demonstrate whether inspectors should require a particular floor or surface in a workplace to be of a slip-resistant finish to fulfil regulation 12(1), and/or to be kept free of contamination under regulation 12(3).
Smith LJ, giving the leading judgment, said that “If a smooth floor is frequently and regularly slippery, because of a substance which lies upon it, albeit only temporarily, the surface of the floor may properly be said to be unsuitable, if the slipperiness is such as to give risk to a risk to the health and safety of those employees using it.” Regulation 12(1) (as explained by way of example in regulation 12(2)) is therefore intended to cover permanent features of the floor and also regularly and frequently occurring hazardous conditions of which a slipping hazard is a specific example.
In contrast, Regulation 12(3) was there to cover transitory conditions that occurred less frequently, and it would be a matter of judgment in each case whether the hazardous condition arose with sufficient frequency and regularity to make the floor ‘unsuitable for use’.
If transient problems recur sufficiently often and regularly, they may cease to be only the province of regulation 12(3), and instead become the subject matter of the absolute obligation in regulation 12(1). In Ellis, this was deemed to be the case with a corridor in a care home where the incontinence of residents caused incidences of urine on the floor of the corridor.
Ellis gives this interpretation of ‘regular and frequent’ contamination:
Given the number of variables, it would be wrong to be too prescriptive about what will be sufficiently frequent and regular to require a slip-resistant floor finish under the regulation 12(1) duty. The decision in Ellis should be regarded as an example of what may be sufficiently frequent and regular, rather than a threshold.
Note the reference to ‘likelihood’ in paragraph 93 of the ACoP L 24. This paragraph states: ‘Surfaces of floors and traffic routes which are likely to get wet or to be subject to spillages should be of a type which does not become unduly slippery. A slip-resistant coating should be applied where necessary. Floors near to machinery which could cause injury if anyone were to fall against it (for example a woodworking or grinding machine) should be slip-resistant and be kept free from slippery substances or loose materials.’
The mere foreseeability of an infrequent spillage of, say, a drink in a corridor may be insufficient to transform a duty holder's obligation under regulation 12(3) to prevent or manage spillages (SFAIRP) into a requirement to provide a slip-resistant finish to meet the strict liability duty imposed by regulation 12(1) to ensure that a floor is of a construction that is suitable for the purpose for which it is used.
The duties in regulation 12(1) and (3) need not be alternatives – it would be possible for an employer to be charged with both offences without duplicity.
Inspectors should be aware of who (in terms of diversity e.g. men, women, disabled etc) is the target group in the sector they are dealing with. Give consideration to, and factor into the approach, any issues that may surround this audience such as literacy issues, English as a second language and disability (access needs).
The Diversity & Delivery pages give more information on these areas and others, including the Communications and EIA toolkits.
