In this month’s partnership article, Andrew Sanderson and Annabel Twose of Fieldfisher’s Health & Safety practice group reflect on the death of supermarket worker, Matthew Gunn, and the importance of making reasonable workplace adjustments for the wellbeing of workers.
In 2014, Matthew Gunn died aged 27 following a fall on a staircase at his place of work, a Tewkesbury branch of the supermarket chain WM Morrisons Ltd.
Credit: Alamy Stock
Matthew had epilepsy, which could cause him to collapse without warning. Matthew had been diagnosed as epileptic since childhood and had worked for Morrisons for close to a decade. Morrisons therefore knew about Matthew’s epilepsy, and some adjustments had previously been made to try to ensure Matthew had a safe working environment. These included, for example, reassigning Matthew from the canteen (where he had been working with deep fat fryers) to the grocery section of the store.
Morrisons required employees to deposit their personal items in lockers located up a flight of stairs at the start of each shift. In June 2014, a formal occupational health assessment endorsed a recommendation that Matthew’s possessions locker be moved to the ground floor to avoid the risk to Matthew’s safety of a collapse on the stairs.
Matthew’s colleagues reported previous occasions where colleagues had found him having a seizure on the stairs and had expressed concerns about Matthew’s safety.
Tragically, the recommendation to move Matthew’s locker was not implemented, and in September 2014, Matthew experienced a seizure in the stairwell, fell, and sustained serious head injuries. Matthew died in October 2014, having never recovered from the fall.
In February 2023, Morrisons was convicted of:
The offences were placed in the highest category of culpability and harm and Morrisons was fined £3.5m.
Morrisons appealed against the finding, on the grounds that the staircase presented no risk to ordinary users and using the stairs was a routine activity not compounded by work activities.
In May 2024, the Court of Appeal upheld the conviction, finding that an employer’s obligation to keep all their employees safe was engaged when a particular condition of a particular employee presented a risk of unsafety. Regardless of the activities of ‘ordinary users’, going to his locker was a work activity for Matthew and one which created a material risk to his health and safety, and therefore the duty to consider reasonably practicable steps was engaged.
Lord Justice Davis said: “We accept that the staircase did not present a risk for almost all members of staff at the store. […] In our judgment that is not the point. It created a material risk to the health and safety of Matthew Gunn.”
Tragically, there was an easily-available reasonable step which could be taken to reduce the risk – move Matthew’s locker to the ground floor.
Annabel Twose at Fieldfisher.
The inquest into Matthew’s death found that “an absence of a structured process and ownership in relationship to managing a person with epilepsy, a lack of communication, no personal risk assessment or the monitoring thereof, and insufficient reporting all led to missed opportunities that may have contributed to Matt’s death.”
Morrisons were not convicted of failures to make reasonable adjustments under the Equality Act 2010, however, it is difficult to look at Matthew’s case without considering Morrisons’ obligations as an employer.
The Equality Act 2010 provides that an employer has a duty to make ‘reasonable adjustments’ to remove or reduce any disadvantage that their employee might face as a result of their disability. Epilepsy meets the definition of a ‘disability’ for the purposes of that Act, and so Morrisons did have an additional duty of care to Matthew.
A reasonable adjustment assessment should consider whether the adjustment proposed:
Matthew’s reassignment from a dangerous canteen environment to the shop floor is a classic example of the types of adjustments advocated for by epilepsy support groups – it maintains personal safety, is low-to-no-cost to implement, is easy, practical and has no detrimental health and safety implications for others. It is therefore very difficult to see why another, seemingly practical and affordable adjustment in the form of relocating his locker, was not implemented at the same time.
Andrew Sanderson, Partner at Fieldfisher.
The findings of Matthew’s inquest and the decisions of the decisions of the courts serve to highlight how avoidable Matthew’s death could have been. Businesses would do well to consider the following lessons from the case:
Matthew’s death is a tragic reminder that companies must ensure that the safety of all individual employees is considered. Regardless of the position of the masses, if one employee is put at risk due to a system of work, reasonably practicable steps must be taken to ensure their safety.
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