Health and Safety Act 1974, Occupational Hazards
Extract 1
: Catering
for occupational hazards
Extract 2 : Are
the Health and Safety Regulations adequate ?
Are the Health and Safety Regulations adequate ?
One of the main challenges facing the HSA 1974 is the changes to the workplace in recent times. Technological advancements have meant that there are now different types of risks being faced in the workplace. Processes are highly mechanized, and the move away from a manufacturing economy towards a service based one has introduced new hazards that the HSA is arguably not well equipped to deal with. Examples of such hazards would be psychological harm, and occupational over use syndromes. Examining the case law in this area, and indeed the regulations will highlight the areas where new hazards or trends have arisen, and remained un-catered for under the provisions of the HSA.
A. Occupational overuse
This is one of the new hazards that has developed with advanced in technology and a change in the way people work. The term occupational overuse is used in this instance to denote the group of 'musculoskeletal/ upper limb' disorders, such as repetitive strain injury (RSI). As was outlined in earlier sections the employer is under an obligation to protect his workers form work related hazards, this obligation extends to conditions such as RSI , but it appears difficult to get a judgment favourable to the worker in court . In 1993 when Mughal 1was decided , it was held that RSI was not a recognised medical condition for which employers would be liable. The employee, who in this case was a journalist, claimed that that he had been permanently disabled by repetitive strain injury (RSI) through keyboard and visual display unit work. It was held that the Employer had not breached any of its duties.
Despite
the success we see in the McPherson v Camden LBC 2 above, it arguably still uncommon for a pure RSI claim to succeed . In a case
based on similar facts to that of Mcpherson , the same argument of a work related
condition fails. In Pickford v ICI Plc3 The
employee whose work as a secretary had involved long periods of typing, alleged
that she had contracted PDA4, a recognised industrial disease involving cramp
of the hand or forearm, as a result of repetitive movements while typing, and
that her employer had been negligent in failing to warn her of the foreseeable
risk and the need for rest breaks. The medical evidence presented in the High
Court was divided as to whether PDA4 was an organic or psychogenic condition,
and the judge, having been unable on the basis of that evidence to decide the
probable cause of her condition, and having considered the other evidence, concluded
that she had not met the burden of proving that her condition had been caused
by typing; that the risk of someone in her position contracting PDA4 was not reasonably
foreseeable, and that ICI had not been negligent in failing to inform the employee
of the need for rest breaks.
More recent is the case of Spencer v Boots the
Chemist Ltd,4 which was decided in 2002. A counter
pharmacist, appealed against the decision to dismiss his claim for damages against
his former employer. His personal injury consisted of painful 'rotative cuff injury'
to the left shoulder which had resulted from being required to repeatedly raise
his arm above shoulder level in replacing stock bottles on shelving. The employee
claimed that risk assessments, carried out in accordance with the Management of
Health and Safety at Work Regulations 1992, would have revealed a risk which would
have required steps to have been taken in order to satisfy the Employer's common
law duty to take reasonable care for the health and safety of its staff. His appeal
was dismissed. It was held that the risks had not been of such a nature that it
would have been incumbent on any reasonable employer to take steps to counter
them or which would have been likely to have lead in any foreseeable way to injury
of the kind suffered if they had not been taken.
B. Work Induced Stress
In Sutherland v. Hatton 5 , highlights the problems faced by workers seeking protection from stress related hazards at work. The issue before the Court concerned the liability of an employer for an employee's psychiatric illness caused by stress at work. It was held that the question was whether the kind of harm to the particular employee was reasonably foreseeable and not whether psychiatric injury was foreseeable in a person of "ordinary fortitude". We see clearly that a psychiatric disorder would be more difficult to foresee than a physical injury. Relevant factors were held to include: (1) the nature and extent of the work being undertaken. An employer was required to be more alert if an employee was being overworked in a job which was intellectually or emotionally demanding, and (2) signs exhibited by the employee himself. It was necessary to distinguish between signs of stress and signs of impending harm to health. Even where an employer had not received express warning from an employee, harm to health could become foreseeable where an employee uncharacteristically took regular or prolonged absences from work. However, an employer was entitled to assume, unless he was made aware of a particular problem or vulnerability, that an employee could cope with the normal pressures of his job; in general, there was no requirement to make searching and intrusive inquiries. What an employee told his employer could be taken at face value. When an employee returned to work following an absence for sickness, it was implied that in returning the employee considered himself fit to return. An employer had a duty to act only when the indications were plain enough for any reasonable employer to realise that it was necessary to do something. When considering what it was reasonable for an employer to do, the size and scope of the business together with the availability of resources were relevant. The employer only had to take steps which were likely to be of some benefit. For the purposes of proving causation, an employee merely had to show that the employer's breach of duty had materially contributed to his ill health. 6
C. Transient workers
One area which the HSA has arguably failed to provide adequate protection for is that of transient workers. The increase in people working casually , part time , and as independent contractors is identified by Gunningham 7. He touches on how increased competition and economic stress can cause employers and indeed self employed people to overlook the occupational health of transient workers. Besides this consideration , one can argue that outside deliberate breaches by those in authority , the legal framework itself lets such workers down . An examination of the issue in the Fairchild 8 case will illustrate this point. The employee had worked for and been exposed to asbestos due to the action of more than 1 employer. Normally in this type of case, the employers would all be liable for compensation on a percentage basis, based on the time the claimant was exposed to asbestos during employment at each firm. However in this particular case, the cancer that the employee developed 'mesothelioma', was held to have been triggered by a single fibre; not the result of continous exposure as seen in typical exposure cases. The Employers argued that , causation would be impossible to prove, as it cannot be established which Employer was responsible for the single fibre of asbestos that was inhaled. At appeal this stance was affirmed. It held that the court could not ignore evidence and distort the law to achieve what might appear to be the just result.
D. Other Short comings
Walters in his text on Health and Safety 9 , picks up on the inadequacy of the enforcement system, which places undue reliance upon a poorly resourced enforcement agency in order to prevent accidents and injuries from occurring at the workplace. The HSA has not given a lot of right to the individual worker to protect themselves from harm when working for an employer in breach of his statutory duties. For those workers unable to meet the requirements of section 100(1)(d) or (e) of the Employment Rights Act 1996, they may have to pay a heavy price for refusing to work on health and safety grounds . 10
4. Conclusion
The HSA went a long way in securing protection for workers with regards to occupational health hazard. However, as can be seen for the preceding discussion, it has arguably not catered for new hazards brought on by a change in work practices. Gunningham sums it up well when he describes the legislation in this area. The legislation is about 25 years old, and the pace of change in society and the economy as a whole out strips its ambit. Gunningham proposes different models of legislation to address the short comings of the HSA 1974, which include a reassessment of the criminal sanctions under the HSA. He proposes that the criminal sanctions be used not just as a deterrent to offending employers, but should be widened to allow for their rehabilitation. He advocates sanctions which focus on corporate systems and restructuring, as opposed to just financial penalties. He also proposes that enforcement should not be case/ event led. Why wait till the injuries occur?. He appears to encourage a system of regulation which will allow sanctions based on a pure breach of duty, as opposed to one that lies in wait till its time to litigate.
The health
and safety of workers is increasingly important in a thriving economy. The loss
of productivity is unaffordable, and employers need to be educated that it costs
them to lose good workers to avoidable risks. Gunninghams' systems of adverse
publicity and restructuring of the penal system might work, but arguably what
is needed most, is clarity and flexibility in the law of health and safety. Flexibility
to respond to changes in the workforce and economy, whilst keeping the benefit
of the worker enshrined .
- Mughal v Reuters Ltd , [1993] I.R.L.R. 571[^ Return]
- 1999 WL 819068[^ Return]
- [1998] 1 W.L.R. 1189[^ Return]
- 2002 WL 31413994[^ Return]
- [2002] EWCA Civ 76[^ Return]
- Paraprased from Case report. [^ Return]
- Gunningham and Stone , Regulating work place safety , 1999[^ Return]
- [2003] 1 A.C. 32[^ Return]
- Regulating Health And Safety At Work: The Way Forward, P. James and D. Walters (eds), (Institute of Employment Rights, 1999).[^ Return]
- Anna Edwards, Industrial Law Journal , September 2000 , Ilj 2000.29(280)[^ Return]
Bibliography
Barrett, B, Trends in Occupational Health and Safety [1994] Industrial Law Journal Vol. 23 pp. 60-64
Holgate, G, Workplace Health and Safety: Challenging Regulatory Standards, [1994] Industrial Law Journal Vol 23 pp 246-252
Williams, K, Deregulation Occupational Health & Safety [1995] I.L.J Vol 24 pp 133-140
Wright, F,B Law of Health and Safety at Work , Sweet & Maxwell, 1997 pp 111-174
Gunningham and Johnstone , Regulating Work Safety , 1999 , Oxford University Press.
Michael
Gerrard , 'old wounds -- in April, the House of Lords will weigh up the rights
of asbestos sufferers to claim compensation -- this debate will reverberate throughout
the PI world', Law Society Gazette Vol 99 No 09 p 22
Extract
1 : Catering
for occupational hazards
Extract 2 : Are
the Health and Safety Regulations adequate ?
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