How team-building days can go wrong
Team-building and fun days may help to promote better team working, but Judith Gledhill looks at how far an employers’ duty of care extends
Employers have long recognised the value of encouraging employees to join the works football, softball and other teams and to participate in activities and events that promote team working. However, what happens when team building exercises or other sporting activities go wrong and participants are injured?
Will an employer or games organiser be found to be responsible and ordered to pay compensation?
The concept of “duty of care” has long been established. Even before the famous 1932 case of Donoghue -v- Stevenson, involving a Mrs Donoghue who became ill after swallowing a snail contained in a bottle of ginger beer manufactured by Mr Stevenson, it was accepted that certain classes of individuals owe a duty of care to others.
If the court finds that one party has a duty of care to a second party, and if the second party is injured as a consequence of the negligence or breach of statutory duty of the first party, the courts may well find the first party to be responsible for the injuries and award compensation.
An employer has a duty of care towards his employees. Employers must take reasonable care to protect their employees from foreseeable harm. This duty of care cannot be delegated to another person or organisation.
How far does this duty extend when employees are engaged in team building days or work fun days? Will an employer be liable to compensate his employees injured when participating in such activities?
A recent Court of Appeal decision explores the extent of the employer’s duty while taking account of the importance of promoting the social value of such activities.
Diving head first
In the case of Uren -v- Corporate Leisure UK Ltd (1) and the Ministry of Defence (2), the claimant suffered serious injuries when he dived head first into an inflatable pool during a “health and fun day” held at RAF High Wickham. Mr Uren hit his head on the base of the pool, broke his neck and was rendered tetraplegic.
He brought a claim for compensation against the MoD and the organisers of the tournament, Corporate Leisure (CL) alleging they had been negligent and were in breach of their duty of care towards him.
Mr Uren argued that both defendants had failed to take reasonable care to ensure that the games were played in a safe fashion. He alleged that, had a proper risk assessment been carried out, the hazards inherent in the game would have been identified and proper instructions would have been provided by both defendants concerning how the participants should enter the pool.
CL had carried out risk assessments on the activities, but the risk assessment of the pool game made no reference to the methods of pool entry. The trial judge held that this risk assessment was inadequate.
The RAF had also carried out a risk assessment. However, their employee assumed that CL was responsible for the safety of the events and prepared an assessment without knowing how the pool game was to be played, let alone considering how the participants should enter the pool.
The trial judge found that it was not open to the MoD to leave the preparation of the risk assessment to CL. He found this risk assessment was “fatally flawed”.
Despite his findings on the risk assessments, the judge found that the risk of “serious injury” to the participants was not great and, bearing in mind the “social benefit” of the game, the defendants had not been in breach of their duty of care to the claimant.
The judge went on to say that a balance had to be struck between the level of risk and the benefits the activity conferred. As the risk of injury was small, the claim failed.
Mr Uren appealed arguing that, had proper risk assessments been undertaken, both the MoD and CL should have foreseen that participants might enter the pool head first and that serious injury could occur. He argued that guidance should have been given on the correct means of entering the pool and that head-first entry should have been forbidden.
On Appeal, Lady Justice Smith found there could be cases where the failure to carry out a proper risk assessment could indirectly cause an injury. If the claimant could prove this, they would succeed in establishing liability.
She highlighted the fact that risk assessments are an important feature of the health and safety landscape and that they should be seen by employers as a “blueprint for action”, an active and living document whereby employers should consider the risks and implement safeguards.
Importantly, Lady Justice Smith stated: “Sometimes the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside.”
She went on to criticise the trial judge’s approach to the balancing exercise he had undertaken when considering the risks of the pool game on the one hand and the social benefit of the game on the other.
While accepting the social value of the game, Lady Justice Smith found that she could not be satisfied that the trial judge had reached a sound conclusion when he held that the game as played carried only a very small risk of serious injury.
Turning to the risk assessment undertaken by the MoD, she confirmed that the common law duty of care of an employer to an employee cannot be delegated.
She found that the duty to undertake a risk assessment was so closely related to the common law duties of employer to employee that it would be “remarkable” if the requirement to undertake a risk assessment could be delegated but the general responsibility for safety could not.
As such, Lady Justice Smith held that the trial judge was clearly right to hold that the duty to undertake a risk assessment by an employer is non delegable.
Mr Uren’s appeal was accordingly allowed and his case has now been sent back for re-trial by a different High Court judge, with Lady Justice Smith directing that the issues in the action should be limited to the question of the degree of risk of serious injury entailed in the game as played and whether that degree of risk was acceptable in view of the social value of the game.
Where does this lead employees who wish to participate in sporting activities and team building or other work-related fun days? Employers have a non-delegable duty of care to their employees. They must ensure that the activities are properly risk assessed, appropriate safeguards put in place and guidance given.
However, when undertaking the risk assessment, employers are entitled to consider the social nature of the game and to carry out a balancing exercise looking at the degree of risk of injury to the participants in the activity as against the social value of the game.
If there is a social value in the game being played or activity undertaken then, so long as the risk of serious injury is small, an employer may well avoid liability.
It appears from this judgment that, had Mr Uren simply sustained a fractured wrist as a consequence of diving into the pool head first, it is unlikely that his employer or the contractor would have been criticised, even though the risk assessment that was undertaken was palpably insufficient.
What about employees injured while participating in a works football match or other sporting activity? In the case of Barnes -v- Chief Constable of Sussex Police Force and EquionServices, the claimant, a policeman on a residential training course, was engaged in a game of football and was the victim of a heavy tackle. The tackle knocked him into some benches in a sports hall and he suffered injury.
The occupier of the sports hall was sued on the basis that the benches should not have been present in the gym. The employer was also sued for failing to ensure that the benches were moved and on the principle that they were vicariously liable for the actions of their employees.
The judge found that the occupiers of the gym were not liable to compensate the claimant on the basis that it was not hazardous for the benches to be stored in the gym.
The judge also dismissed the action against the employer on the basis that the football game was not part of the course and was not something for which the employer should be held liable, even though the claimant had pointed out the fitness, bonding and residential element of the game.
No mention was made of the social value of the game as the judge effectively held that the employer did not have a duty of care to the claimant while he was playing football.
The impact of the social value argument should not be underestimated. It is clear that judges will be slow to find employers liable for minor injuries resulting from accidents during team building and other social activities relating to the workplace.
In the recent case of The Scout Association -v- Mark Adam Barnes, the judge found against a claimant who had suffered injury while playing a game in the dark during a session with his local scout group, saying: “It is not the function of the law ... to eliminate every iota of risk or to stamp out socially desirable activities.”
The claimant actually won that case on a majority finding in the Court of Appeal on the basis that there was no need or increased social value in the game by playing with the lights turned off.
The message is however clear: social activities are seen to be beneficial and judges will think long and hard before finding employers responsible if things go wrong.