Morrisons appeal fails, £3.5 fine upheld after failure to make adjustments for vulnerable worker

Supermarket chain WM Morrisons Ltd, who went to the Court of Appeal to overturn health and safety convictions, has instead seen their convictions upheld.

The convictions stem from an incident in 2014, when Morrisons employee Matthew Gunn (27) died after falling down a staircase at the Tewksbury Morrisons branch, where he worked.

Matthew, diagnosed with epilepsy since childhood, had worked for Morrisons for nearly 10 years. His epilepsy could cause him to collapse without warning.

With this knowledge of Matthew’s epilepsy, Morrisons had made some adjustments to ensure a safe working environment. For instance, Matthew had been reassigned to the grocery department, away from working with deep fat fryers in the canteen.

However, all employees were required to deposit personal items in lockers, which were a floor above the store, up a flight of stairs. A formal occupational assessment in June 2014 identified the risk this presented to Matthew, who might unexpectedly collapse whilst using the stairs.

Matthew’s colleagues reported that this had already happened on multiple occasions. They had found him having a seizure on the stairs and expressed concerns about his safety.

His mother, Sue Goellner, had warned managers of the risk to her son due to his frequent seizures.

The occupational health assessment specifically recommended that Matthew’s locker be relocated to the ground floor. Morrisons never enacted on this recommendation.

Three months later, Matthew experienced another seizure. He was on the stairwell at the time and fell down, sustaining serious head injuries. He never regained consciousness, and in October 2014, Matthew died.

Morrisons were convicted in February 2023 when a jury found them guilty of three offences:

•   Failure to ensure, so far as reasonably practicable, the health and safety of employees: Section 2(1) of the Health and Safety at Work Act 1974
•   Failure to carry out a suitable and sufficient assessment of the risks to the health and safety of employees: Regulation 3(1) of the Management of Health and Safety at Work Regulations (MHSWR) 1999
•   Failure to review any assessment of the risks to the health and safety of employees: Regulation 3(3) of MHSWR.

Sentencing placed Morrisons’ offences in the highest category of culpability and harm, and the company was fined £3.5m, one of the highest fines issued in 2023.

Morrisons had pleaded ‘not guilty’ to these three offences and appealed against the finding. They maintained that the staircase where Matthew died presented no risk to ordinary users. Climbing up and down stairs was a routine activity, they argued, not compounded by work activity.

Richard Matthews KC, representing Morrisons, described the case as “tragic” but said a “control measure to forbid Matthew from using the stairs” was not an option.

He said: “No one can or should suggest that every staircase, fixed staircase, in a workplace, with a lift, has to have a rule that epileptics who may have a severe epileptic seizure are not permitted to use it.”

In May 2024, the Court of Appeal rejected this argument, upholding the conviction. They held that an employer’s duty of care 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’, Matthew’s use of the stairs to reach his locker was a work activity. The high likelihood he might experience an epileptic seizure created a ‘material risk’ to his health and safety – therefore, the duty to consider reasonable adjustments to his work applied.

Refusing the appeal bid, Lord Justice William 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.”

Sitting with Mrs Justice Cheema-Grubb and Judge Dennis Watson on the appeal, Lord Justice David said:

“There was ample evidence that the conduct of the company exposed Matthew Gunn to a real risk.

“The event that led to Matthew Gunn’s death was one that had been feared by his mother, his colleagues and the company’s occupational health officer.

“All these fears were made known to the company.”

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