In a case which demonstrates that there is a limit to the duties owed by employers under health and safety legislation, the Court of Appeal has rejected arguments that a local authority was obliged to provide sun cream and a hat for a gardener who worked outdoors – Earl v Middlesbrough Borough Council.
The gardener sued the local authority for damages of £5,000 after she developed a skin condition which she blamed on exposure to the sun’s rays. She required surgery to remove a non-cancerous lesion from her nose and argued that her employer had breached its duty by failing to provide her with suitable protective equipment.
Her case was dismissed by a judge on the basis of expert evidence relating to the cause of her condition, the effectiveness of sunscreen and the rate of incidence of such problems in outdoor workers. In challenging that decision, the gardener argued that sun exposure posed a well-known risk against which her employer was duty bound to protect her.
However, in refusing permission to appeal, Lord Justice Briggs commented, “We are looking at whether employers have an absolute duty to furnish hats and sunscreen, rather than say to their employees, ‘look, there are consequences to exposure to the sun’.”
Observing that compliance with health and safety rules ‘surely does not mean that an employer has a duty to supply a hat and sunscreen for every employee who works outside’, the judge added, “Everybody has different skin and needs different protection.”
He concluded, “If I was to tell my wife what sunscreen to wear, I would get a pretty short response. It is up to the employee to decide what to wear and what to use, it is well known that the quality of the expert evidence is a matter for the judge. This is a hopeless appeal for a very modest amount.”
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