Forbes at Trial - R v Wigan Council

In the current situation when schools are being advised to open windows to ensure adequate ventilation to avoid Covid-19 transmission, this case is a useful reminder of issues that can arise.

Forbes successfully defended this claim on the basis that there was a safe system of work, and that the claimant had failed to follow it.

The Claimant was a site manager at a primary school in Wigan. She alleged that she slipped and fell whilst stepping down from a countertop that she had climbed onto using a chair. She had done this to enable her to open a window. The chair slipped away as she stepped back. This action was in contradiction of the school's policy which was to use a stepladder to access the countertop and so the windows. The Claimant accepted that this was the case but her allegations against her employer included that she had no choice but to do it in this way, as there was no ladder available, and that it was necessary for her to open the windows for the wellbeing of the children and staff as it was a warm June morning. No allegations were taken to trial that the chair or countertop were faulty in any way.

It was accepted by the Council that standing on the countertop was part of the safe system of work, as it was of a bespoke sturdy construction, fixed in place and robust enough to withstand the weight of an adult. A stepladder should be used to access the countertop, which could then be stood on to access the windows. The judge did not accept that any difficulty the claimant might have had in locating a stepladder justified using a chair to carry out the task.

She claimed that she had made complaints about the windows, calling them a health and safety hazard. However, the judge accepted that the only complaints made were that they were stiff and awkward to open, not that they could not be accessed easily. Further, she was not in the process of actually opening the windows when the accident occurred.

It was significant that the Claimant had considerable knowledge of the school having worked there for over 25 years, and since 1998 had been the caretaker before she was promoted to Site Manager in 2008. It was part of her job to manage the building, including opening windows as necessary, and the storing of ladders, of which there were several in the school.

She had taken it upon herself to open the windows and the judge preferred the Defendant's evidence that there was no pressing need to open the windows on the day in question such that it warranted a departure from the agreed policy.

The Claimant had been trained in working at height and using stepladders, which training included explaining why it was not safe to use a chair to work at height.

Her job description makes her responsible for health and safety and the checking of ladders.

The judge considered that the school's policy was adequate. The claim failed because the claimant had failed to follow it. It was not the window opening process that was at fault, but the fact that the claimant used a chair to access the window, contrary to the policy

Forbes Comment

At first glance, it might be thought at climbing onto a countertop to open a window might not be a safe system of work. However, it needed to be considered in the proper context. The countertop was robust and had been designed specifically to be stood upon if accessed in the correct way. In order to successfully defend this claim, it was important to obtain good evidence about the school's policy and the claimant's training and experience. With that, it was possible to defend a claim on the basis of a safe system of work being in place, even where the claimant was being asked to stand on a countertop to open a window. Each case will need to be considered on its own facts, but such claims can be defended with the right systems and approach.