Withers v Perry Chain Co Ltd: CA 21 Jul 1961

An employee with dermatitis returned to work when it was known both to him and his employers that continuing to work would carry a small risk of it recurring or being exacerbated.
Held: The Court allowed the employer’s appeal against the trial judge’s award of damages.
Sellers LJ said: ‘the defendants gave her what they thought to be the best available work they had. In fact, if she had not taken that work it would seem that she would not have worked at all and would not have earned any wages, which apparently she sought to do. I cannot believe that the common law requires employers to refuse to employ a person who is willing to work for them simply because they think that it is not in the person’s best interests to do the work. That would be imposing a restriction on the freedom of the individual which I think is foreign to the whole spirit of the common law of our country.’ and
‘there is no duty at common law requiring an employer to dismiss an employee rather than retain him or her in employment and allowing him or her to earn wages, because there may be some risk. The duty of the defendants in this case was to take all reasonable care for the plaintiff in the employment in which she was engaged, including a duty to have regard to the fact that she had had dermatitis previously. Beyond that I do not think the common law can be invoked.’
Devlin LJ: ‘In my opinion there is no legal duty upon an employer to prevent an adult employee from doing work which he or she is willing to do. If there is a slight risk, as the judge has found, it is for the employee to weigh it against the desirability, or perhaps the necessity, of employment. The relationship between employer and employee is not that of a schoolmaster and pupil. There is no obligation on an employer to offer alternative safe employment, though no doubt a considerate employer would always try to do so – as the defendants thought they had done here. Nor is there any obligation on an employer to dismiss an employee in such circumstances. It cannot be said that an employer is bound to dismiss an employee rather than allow her to run a small risk. The employee is free to decide for herself what risks she will run. I agree with what [Sellers LJ] has said, that if the common law were to be otherwise it would be oppressive to the employee, by limiting his ability to find work, rather than beneficial to him . . . It may be also, on the principle of Paris v Stepney Borough Council, that when the susceptibility of an employee to dermatitis is known there is a duty on the employer to take extra or special precautions to protect such an employee.’

Sellers LJ, Devlin LJ
[1961] 1 WLR 1314, [1961] EWCA Civ 4, [1961] 3 All ER 676
Bailii
England and Wales
Citing:
CitedParis v Stepney Borough Council CA 1949
. .

Cited by:
ConsideredCoxall v Goodyear Great Britain Limited CA 22-Jul-2002
The employee worked at a plant using chemicals. After starting, the work system was changed. The staff were given the best protection available, but the claimant suffered a pre-existing tendency to asthma, which was excited by the chemicals used. He . .
CitedBarber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .

Lists of cited by and citing cases may be incomplete.

Personal Injury

Updated: 16 November 2021; Ref: scu.181793