Case study: Morrisons supermarket (2023, 2024)
Relevance of this case
There are many learning points from this case, but in relation to my book, it illustrates – in a tragic way – how agreeing on controls but not implementing them can lead to serious harm, and to an expensive court case.
Background
R v Morrisons – this case was prosecuted by Tewkesbury Borough Council as the local authority.
Matthew Gunn, who had lived with epilepsy since the age of four, began working for Morrisons at the age of 17. His employer was aware of his condition, and when Matthew experienced a seizure while working in the canteen, the company transferred him to the grocery department for his own safety.
Matthew used the staff stairs at least eight times a day, to access his locker (where he stored his cigarettes in accordance with company policy) and the canteen. While a lift was available, staff noted it was often unreliable, and Matthew himself expressed concerns about having a seizure while trapped inside.
A week before his fatal fall, Matthew suffered a seizure in the warehouse, prompting his mother to collect him. During this time, he also experienced an ‘absence’ episode. Despite these events, no further action was taken to review or adjust the existing control measures in place for Matthew.
Incident
On the day of the fatal incident, Matthew was found unconscious at the foot of the staff stairs by two colleagues. He was taken to hospital and treated for a traumatic head injury but sadly died 12 days later, never regaining consciousness. It is believed he fell while experiencing a seizure on the stairs.
Missed opportunities
The inquest held in 2016 concluded that Morrisons had “missed opportunities” to ensure Matthew’s safety. The company had identified risk, but failed to regularly review and adapt its control measures.
Morrisons had initially conducted a risk assessment regarding Matthew’s epilepsy. This included relocating him from the canteen to the grocery department. However, the risks associated with frequent stair use were not adequately addressed.
Matthew and his mother had a meeting with the store personnel manager, and the occupational health officer. Positively, it was suggested by the occupational health officer that Matthew’s locker could be moved downstairs, and he could use his staff discount at the ground floor public café, to reduce his need to use the stairs. These controls were never implemented.
Legal proceedings
The inquest in 2016 concluded that Morrisons “missed opportunities” to keep Matt safe.
In the 2023 trial, Morrisons faced four charges under health and safety legislation:
- Failing to ensure the health, safety, and welfare of employees, particularly Matthew Gunn, between 2004 and 2014.
- Failing to carry out a suitable and sufficient risk assessment for Matthew Gunn.
- Failing to review risks and assessments when it was evident they were no longer valid.
- Failing to supply information requested by the council.
Morrisons pleaded guilty only to the fourth charge, but was found guilty on all counts.
It was entirely foreseeable that Matthew could have another seizure, and that if this occurred on the stairs, he could have an injury. Moving him from the canteen shows Morrisons were aware of the risks
While Morrisons argued that Matthew could have used the lift, the court noted its unreliability and Matthew’s reasonable reluctance to use it.
There was no dispute that Morrisons, aware of Matthew’s epilepsy, had initially engaged in a level of risk assessment but that the continuing duty had not been met.
The company was fined £3.5 million, reflecting the highest category of culpability and harm.
The appeal
Morrisons appealed in 2024, arguing that the risks associated with Matthew Gunn’s epilepsy were not materially related to his work activities and fell outside the scope of health and safety legislation. They also argued that there was no evidence they had failed to produce a suitable risk assessment. The three key arguments – and the response of the appeal court – are shown in the table below
| Grounds for appeal | Response of appeal court |
|---|---|
| No relevant work risk Morrisons argued that the risk of an epileptic employee falling on stairs was not a “relevant risk” under health and safety law, as it arose from his medical condition rather than work activities. Citing R v Porter [2008], they likened the risk to everyday life hazards, asserting their duty under the Health and Safety at Work Act 1974 was limited to providing a generally safe workplace, which they claimed the stairs already met. | Using the stairs to access his locker was a requirement of Matthew’s job Therefore, the risk of falling due to his epilepsy was a “relevant risk” under health and safety law. Unlike in R v Porter, the Court found clear evidence of a real and foreseeable risk posed to Matthew. They further affirmed that Morrisons had a duty to ensure the safety of all employees, including those with disabilities, and that reasonably practicable steps, such as relocating his locker to the ground floor, could have mitigated the risk. The failure to take such measures constituted a breach of duty. |
| Scope of legislation Morrisons contended that the need for reasonable adjustments for Matthew’s epilepsy fell under the Equality Act 2010, not health and safety law. They argued that requiring a person-specific risk assessment could expose them to discrimination claims under the Equality Act. Furthermore, they stated the trial judge should have ruled on the interplay between these laws instead of leaving it to the jury. | Health and safety law imposes distinct and separate obligations The court emphasised that a person-specific risk assessment was necessary to identify and address the risks posed to Matthew by his epilepsy. |
| No evidence of failure to assess and review risk In relation to risk assessments, Morrisons argued that the prosecution provided no evidence proving they had failed to conduct or review a suitable risk assessment for Matthew. | No evidence of relevant risk assessment Both expert witnesses testified that they had not seen any person-specific risk assessments for Matthew, leading the jury to infer that none had been conducted or reviewed. |
Note the last grounds for appeal from Morrisons. This is an interesting argument – it’s not saying “we proved we’d done a suitable and sufficient risk assessment” it’s saying “you didn’t prove that we hadn’t done a suitable and sufficient risk assessment.”
It seems clear too that if controls were agreed but not implemented, a further review should have taken place to decide what alternatives were available, either permanently or until the agreed controls were in place.
Appeal outcome
The Court of Appeal dismissed Morrisons’ appeal, upholding the £3.5 million fine.
Conclusion
If you identify a reasonably foreseeable hazard, you must consider controls.
If you agree on controls, you must implement them immediately, or put some other measures in place until they can be implemented.
Risk is not static and needs to be considered on a suitably regular basis. It is not sufficient to simply identify a risk, or even address it with control measures, and subsequently not review it on a regular basis and reflect changes.
R v Porter doesn’t seem like a good basis for appeal. The child in that case wasn’t at any particular risk over and above any other child, there had been no previous concerns about the steps or the child, and no control measures had been suggested.