Understanding the law

Melvin 'Flip' Sandell analyses ‘who says what the law means’. It’s always written in a particular way, which is often difficult to interpret, indeed many lawyers make whole careers out of trying to convince judges and juries that it means what they want it to! For instance, the main piece of law giving you duties for the public in the soft-play business says:

‘It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.’

Not an easy read and its phrased in that way so it covers every workplace and situation; you then, as the person with the legal duty, have to understand what it means for you and find a way to comply with it.

It’s vital when you do that, that you don’t try to find ways to make the legislation say what you want or need it to say. Always think about what the drafters were trying to achieve when they wrote the legislation, that’s exactly what a judge will do…

Paraphrasing then, this legislation gives employers legal duties to protect people they don’t employ from the risks of harm in their business. A few important points from that:

- The legal duty is with and stays with, the employer. They cannot give it to someone else, sign any part of it away with disclaimers or claim they didn’t know about it.

- Employer is a simple concept. We all know what employment means and courts will interpret it broadly.

- Undertaking is ALL of the business and the courts interpret this broadly too. The car park, the building and its services, the fittings, the equipment, what and how the activities are run, hygiene, food safety, staff and so on.

- ‘So far as is reasonably practicable’ means you can make a judgement about how far you go to protect people. Keep in mind the courts expect you to meet industry standards and if you choose a lesser level, you may have to justify that in court. Always look at this sort of thing from the position of a juror deciding whether you could have done more to prevent the harm to a child….

- ‘persons not in their employment’ means everyone that comes into your business that you don’t employ; customers, tradesmen, delivery drivers, contractors and so on.

Because your industry mainly deals with children and the law regards them as less able to appreciate danger and risk, you are expected to go extra miles to protect them from themselves. This will often mean doing more to protect them from the actions of other children and the well-meaning actions their parents and carers too! Parental responsibility/irresponsibility is not an easy concept to argue in court and you would be well advised to find ways not to have to resort to it!

I’m not saying everything is your fault; nothing in law prohibits accidents but you must do what you reasonably can to stop them happening when they may cause harm. If someone trips and hurts themselves on a well maintained set of stairs, that’s part of life, but if the stairs were damaged and that contributed to the fall then you could be in trouble!

Contact melvin.sandell@finch-consulting.com for further information