Case Law Update

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Case Law Update

• Jeff Zindani LLB MA
• Forum Law Solicitors

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Overview

• Training Issues and Equipment
• Court of Appeal Guidance on Software
• Risk Assessments Background
• Tick Box Assessments
• When Harry Met Sally Employment Law and Health
  and Safety Law
• Thinking Out of the Box

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STOP PRESS

• 14/06/07
• European Court of Justice Decision on reasonably
  practicable qualification
• European Commissions argument that UK health and
  safety law was not compliant failed
• See C-127/05

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Training, Training, Training Guidance from the
Court of Appeal

• Pennington v Surrey County Council (2) Surrey
  Fire Rescue Service 2006 EWCA Civ
  1493-9/11/06

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Hardware v Software

• UK health and safety legislation is underpinned
  by the need for information, training,
  instruction and supervision
• Historically there was common law duty on an
  employer to do so but not systematic and robust
  enough
• Now seen as a software requirement
• Extensive and systematic-see link with risk
  assessments
• May even apply where a worker has lied about his
  experience eg Tasci v Pekalp of London Ltd 2001
  ICR 633 ( lack of experience would have been
  obvious to a prudent employer)
• Critical to Emergency Service Workers who have to
  make split second decisions

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Challenge for the Future Getting the Balance
Right

• Modern Up to Date Kit?
• Sufficient Training, Information, Instruction and
  Supervision to use the kit?

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Pennington v Surrey County Council (2) Surrey
Fire Rescue Service 2006 EWCA Civ 1493-9/11/06

• John Pennington was an experienced firefighter.
  On 1st February 2001, he was called out to a
  multiple pile up on the M25 to rescue a trapped
  lorry driver whose cab had been compressed by
  another lorry. Several attempts were made to
  rescue the driver-all of which failed.
  Pennington, in the words of the trial judge, was
  overwhelmed with fatigue and stress.
  Nonetheless, he decided as a last resort to use a
  Holmatro power ram to open up the cab so that the
  driver could be released. He had not been
  familiar with this specific ram as he had
  normally used a lighter model. He was injured
  when his finger was caught in the moving part of
  the ram.
• A civil claim for compensation was brought in the
  County Court

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Legal Arguments

• Case Succeeded in the County Court on the grounds
  that the Ram was unsuitable under PUWER98
• Despite overwhelming evidence from manufacturers
  and other trade evidence that the ram was
  suitable
• The LA appealed to CA

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Court of Appeal

• The Court of Appeal, in upholding the trial
  judges decision ( not his reasoning) , held that
  there was inadequate training, and a breach of
  Regulation 11 of the Work Equipment Regulations
• They made it clear that a system of work which
  permitted a fire fighter not trained or
  experienced to use this specific ram in the
  stressful and difficult situation which had
  arisen was not a safe system of work

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Court of Appeal

• The absence of training and experience in
  handling the additional weight of the ram had
  substantially increased the risk of the type of
  injury which had occurred.
• In the language of health and safety, the
  hardware was good but not the software!

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Practical Issues

• Is it right for the Court to substitute its own
  view about the adequacy of training?
• LJ Neuberger, dissenting, said it was dangerous
  and potentially unfair for the court to
  reconstruct facts in this way
• He said it was impossible to reach the
  conclusion that training was inadequate
• The real issue was, on the facts would it have
  made any difference?

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Risk Assessments The Background

• Primary Duty to Carry out Suitable and
  Sufficient Risk Assessment see Reg 3 of
  Management Regs 1999 and ACOP
• Context of Personal Injury Claims and Specific
  Duties
• Paucity of Case Law
• Terminology Generic and Individual?
• Dynamic?

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Risk Assessments Guidance

• Hawkes v London Borough of Southwark
  1998-unreported CA
• Man Lifting a Door in Council block up a flight
  of stairs
• If a Risk Assessment had been carried out the
  employer would have made sure 2 men were involved
• Ex post facto rationalisation!

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Risk Assessments Guidance

• Denton Hall Legal Services v Fifield 2006 CA
• RSI Claim for Legal Secretary
• HELD The work station risk assessment carried
  out by D was inadequate and had been regarded by
  D as an unfortunate waste of time and a
  box-ticking exercise.
• The judges finding that F's working practices
  would have been materially altered if she had
  been properly trained and if risk assessments had
  been performed competently and with proper
  frequency were upheld

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Risk Assessments Guidance

• Mechanical Risks Assessment
• Worker Input Required
• The tick box culture needs challenging!
• Costs in Denton Hall over 300,000.

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When Harry Met Sally Employment Law and Health
and Safety Law

• 2 Branches of Law
• Uneasy Relationship but they have finally got
  together
• Emerging Area Innovative and Challenging
• Moving Away from Individual Compensation Rights
  to Risk Management in the Workplace

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Case Law Development

• Failure to Risk Asses and Sex Discrimination
• Day v Pickles 1999 Page v Gala 2001Hardman
  v Mallon 2002
• In Hardman, a care home had not carried out a
  specific during a workers pregnancy
• Disability Discrimination
• Jones v Post Office 2001-postal worker put on
  restricted duties because of diabetes
• CA looked at risk assessments and concluded that
  this was justified" on health and safety
  grounds

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Disability Discrimination

• Failure to Risk Asses and Disability
  Discrimination
• Surrey County Council v Hay 2006 EAT
• Facts H had been employed as a mobile library
  manager. She had been responsible for driving a
  lorry with a heavy clutch. Following knee
  surgery, H was left with a degenerative knee
  condition. S had attempted to redeploy her and
  had considered various options, namely the
  possibility of employing another assistant,
  adapting her vehicle and swapping her duties with
  another library assistant, who had operated with
  an assistant
• Employment Tribunal allowed her claim as no risk
  assessment had been carried out

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Disability Discrimination

• EAT allowed the appeal
• There was no obligation in law for there to be a
  formal risk assessment, but an assessment should
  meet the facts of the situation,
  Mid-Staffordshire General Hospitals NHS Trust v
  Cambridge (2003) IRLR 566 applied
• Adaptions had been considered and H consulted

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Disability Discrimination

• Disability Discrimination Conflict
• Jones v Post Office 2001-postal worker put on
  restricted duties because of diabetes
• CA looked at risk assessments and concluded that
  this was justified" on health and safety grounds

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Miscellaneous

• Protected Disclosures relating to Health and
  Safety e.g. poor equipment
• Working Time Issues
• Automatic Unfair Dismissal for asserting
  statutory rights e.g. carrying out or proposing
  to carry out health and safety activities

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Conclusions

• Law is a Blunt Instrument
• Courts more concerned about dealing with
  Compensatory issues than HS
• Proactive Risk Management is the Key
• Thinking Out of the Box

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Questions
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Questions