Supermarket giant Morrisons have been fined £3.5million for failing to prevent the death of a worker who suffered a suspected epileptic seizure on a shop stairway and fell to the floor below.
Matthew Gunn died in hospital 12 days after suffering catastrophic injuries at the Tewkesbury store in 2014.
The company denied three health and safety failures arising from Mr Gunn's death but was found guilty last month after a three-week trial at Gloucester Crown Court.
The court heard the 27-year-old was using the store stairs to collect something from his first-floor locker during a work break on 25 September 2014 when he fell.
He never regained consciousness after the accident and so, despite remaining by his side in hospital, his family never got to say goodbye.
Morrisons knew of Mr Gunn's epileptic condition and he had suffered many previous seizures at work. The prosecution said the firm should have realised the danger of him having to use the stairs and moved his locked downstairs to eliminate the risk of a fall.
The prosecution also argued that because the staff canteen was upstairs Mr Gunn should have been allowed to use the public cafe on the ground floor at discounted rates.
Judge Moira Macmillan fined the Bradford-based supermarket chain £3.5million and adjourned to a later date to consider how much the firm will have to pay in prosecution and trial costs.
The judge said Mr Gunn's death followed a "tragic accident" while trying to get to his locker.
She added: "I would like to extend my condolences to his family. I commend his parents’ dignity displayed during the trial proceedings and giving evidence at trial.
“Matthew was forced to use the stairs at least eight times a day for each of his breaks as he had to keep his cigarettes in his locker.
"Morrisons, as Matthew’s employers, had a duty to ensure his health and safety. The jury decided that using the stairs for the amount of time he did was a contributory factor to his death.
“The company failed to carry out a risk assessment. Morrisons fell short of the standards of care expected for somebody suffering from epilepsy.
“Morrisons, in failing to move Matthew’s locker downstairs, failed to treat him as an individual and make appropriate changes. I accept that the risks were specific to Matthew.
“Although Morrisons have been prosecuted for a number of health and safety breaches in the past, the number is quite small for a company of this size.
"The appropriate penalty is a fine of £3.5million. I am told the business is able to afford a fine of this level.”
'We never got the chance to say goodbye'
Following the case, Mr Gunn's parents spoke of the devastation of losing their much-loved son - and the part the tragedy played in the break-up of their marriage.
His father Steve Gunn said in a statement: “The death of my son has significantly impacted on my life. I was very tearful for months afterwards and I was not able to continue working as a charge nurse.
“I had been looking forward to my retirement as I planned to spend more time with Matt. His death contributed to my marriage breaking down.
“This journey has lasted for eight years and is still as painful as when it happened.”
Mr Gunn's mother Sue Goellner added: “Matt was intensive care for 12 days. We stayed at the hospital throughout, day and night. On the twelfth day, October 7, 2014, the family was called to Matt’s bedside as we were told he was dying.
“We never got the chance to say goodbye to Matt as he never regained consciousness.
“Matt’s traumatic death contributed to the failure of my marriage. No parent should have to bury their child. The accident that caused Matt’s death was so easily avoidable.”
During the trial, Morrisons said in their defence that Mr Gunn could have used the lift to the first floor if he had wished - although his dislike of using lifts was known - and they also argued that he was at no more risk of danger on the stairs than anywhere else in the store.
The jury of 10 women and two men took seven hours and 20 minutes to reach their guilty verdicts.
At the start of the trial, the company admitted one offence of failing to comply between 26 May 2015 and 26 Feb 2020 with a request made by an HSE inspector for contact details of a person the inspector wanted to speak to.
But the company contested the remaining three charges brought by Tewkesbury Borough Council, which were:
Failure to ensure the health, safety and welfare of employees, particularly Mr Gunn, a known epileptic, between 29 July 2004 and 25 September 2014
Failure to carry out a suitable and sufficient assessment of the risks to the health and safety of employees, in particular, the assessment of the health and safety at work of Mr Gunn
Failure to review the risks and assessments of employees between 29 July 2004 and 25 September 2014, in particular when the company knew an assessment was no longer valid in relation to Mr Gunn.
The criminal trial followed an inquest in May 2016 when a jury found that Mr Gunn's death was an accident but added that Morrisons had missed opportunities to keep him safe.
The inquest jury verdict said: "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 which may have contributed to Matt's death."
Mr Gunn had worked at the Tewkesbury supermarket for 10 years, first in the canteen but later in the grocery department.
On the day of the accident he was found at the foot of the stairs by a colleague before being taken to Southmead Hospital in Bristol by air ambulance.
He had skull fractures, other multiple fractures and neurological injuries. Following surgery, he showed no neurological improvement and died 12 days later.
Mr Gunn had been diagnosed with epilepsy at the age of four and lived with it for his entire working life. He had previously worked as a paper boy and he started at Morrisons in 2004 at the age of 17.
An epileptic seizure while working in the canteen led to a decision in 2005 to move him to the grocery department. The prosecution conceded during the trial that Morrisons had taken some measures to ensure he had a safe working environment.
Although he worked on the ground floor of the store, however, his locker - which had once been on the ground floor - was upstairs. He did not like to use the lift to go upstairs in case it went wrong and he suffered a fit while trapped in it.
And when suggestions were made that his locker should be moved downstairs he resisted them, saying he did not want to be treated as a special case.
Richard Atkins KC, prosecuting for Tewkesbury Borough Council, told the jury that even when Mr Gunn's mother attended a meeting at the store in June 2014 and asked for his locker to be moved to the ground floor nothing was done - and three and a half months later Mr Gunn's had his fatal fall.
"They knew all about his epilepsy at Morrisons because he had disclosed it when he applied for the job. He had suffered many epileptic seizures at work," Mr Atkins said.
"Morrisons probably did more than many other employers would have done to keep him employed - but we submit they did not do enough to ensure he was kept safe at work.
"An employer has a duty to ensure, as far as reasonably practical, the health, safety and welfare of its employees at work.
"We say Morrisons' failures were so serious as to be criminal. They failed to make a suitable and sufficient assessment of the risks which Matt might be exposed to."
Mr Atkins said no-one witnessed Mr Gunn's fall and no-one could say exactly how it occurred. But it appeared, he said, that Matt had suffered a seizure while using the stairs to access his locker where he was required by the company to keep his phone, cigarettes and other personal belongings while working.
"He fell over the bannister rail or the rail at the top of the stairs and was found on the hard floor in the well of the staircase by other members of staff and it was immediately apparent he had sustained very serious head injuries."
Mr Atkins said Morrisons' staff rules required employees not to carry mobile phones, money and other personal possessions with them while on duty and to put them in their lockers.
"Matt had to deposit his belongings in his locker when he started his shift and collect them at the end of his shift. If he needed money or cigarettes or any of his possessions during the day he had to go to his locker. If he went out at lunchtime he had to go to his locker.
"It is clear he had to go to his locker several times a day.
"To get to his locker he either had to use the stairs or the lift. Matt did not like using the lift as it was apparently unreliable and had broken down on a number of occasions.
"He had told his mother he hated using it. He knew people who had been trapped in it and it was often out of order."
Mr Atkins added: "The simplest thing Morrisons could have done was to move his locker to the ground floor and minimise the number of times he needed to use the stairs.
"I am not suggesting that they should have wrapped Matt in cotton wool or that they had to identify every possible risk no matter how small, fanciful or trivial. The words of the law are that they had to 'ensure as far as was reasonably practical the health, safety and welfare at work of all their employees'.
"But to have moved his locker to the ground floor would not have cost Morrisons very much money, or anything at all. After all, it had once been on the ground floor.
"Keeping it there, or moving it back there, would have considerably reduced the risk of him and may have meant he would still be alive today and we would not all need to be here in Cirencester at this trial."
Mr Atkins said that on 10 June 2014, three and a half months before the fatal fall, Matt and his mother attended a meeting with the store personnel manager Lesley Dixon and occupational health officer Ruth Harris. His mother raised her concerns about him using the stairs to get to his locker and the staff canteen.
"She raised her concerns about what would happen if Matt had a seizure on the stairs and the potential serious consequences if that happened.
"She left the meeting with the impression that Lesley Dixon and Ruth Harris shared her concerns and would put measures in place to minimise the risk of Matt using the stairs.
"Ruth Harris suggested the locker could be moved downstairs and that Matt could use the public cafe on the ground floor to avoid going upstairs and could be given a discount there.
"Lesley Dickson said she would get in touch with someone to move the locker. It appears, however, that this suggestion of moving the locker downstairs was taken no further. If it had been moved downstairs it might have meant Matt would still be here today."
The court heard that Morrisons had previously been convicted for various health and safety breaches across the country over the past 10 years.
The prosecutor told the judge: “Morrisons were prosecuted and convicted not only for the health and safety breaches but also for failing to assess the associated risks.
“The defence have suggested at trial that these breaches were minor, which they were not as the company’s failures led to the death of a young man.”
Richard Matthews KC defending said: “Nothing we say today hides away from the tragedy of this case. The guidelines we have to follow are cold and widely removed from the human tragedy and anything I say is not meant to add to this.
“There is no doubt that the company made voluntary adjustments to help disabled staff to work independently. However, in Mr Gunn’s case, we got it wrong.
“The breach arose from a single incident and an isolated set of circumstances. The whole case focused around whether a locker should have been moved or not.”
The court heard the company has an £18billion annual turnover.