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Yaktrax And Inadequate Ergonomics – Two Recent Cases On The Extent Of Health And Safety Duties

Yaktrax And Inadequate Ergonomics – Two Recent Cases On The Extent Of Health And Safety Duties

Ashok Rebello

Two recent cases show how wide the extent of an employer’s health and safety duties can be and raise four important points that employers should be aware of:

  1. Employers can be liable for the health risks arising from inadequate ergonomics in the positioning of equipment controls.
  2. Where proposed changes to address safety matters are rejected by the workforce this does not necessarily affect the employer’s duty to implement them.
  3. A clear methodology in conducting a risk assessment should be followed.
  4. Appropriate footwear is part of personal protective equipment (PPE) that employers in all sectors may be required to provide where their employees work outside.

Inadequate Ergonomics and consulting with the workforce

In Willock v Corus UK Ltd [2013] EWCA Civ 519 overhead crane drivers alleged that they suffered back pain as a result of having to adopt an awkward posture whilst operating the controls. The employers commissioned an ergonomic evaluation of the cabs and recommended modifications were approved by the employer. The employer then consulted with the drivers, but the drivers rejected the proposed modifications and as a result the changes were not made.

Regulation 17(2) of the Provision and Use of Work Equipment Regulations 1998 states: “Except where necessary, the employer shall ensure that no control for work equipment is in a position where any person operating the control is exposed to a risk to his health and safety.” The Court of Appeal held that this provision could apply to circumstances where the resultant posture which had to be adopted put the operator at risk of injury. Furthermore, that the modifications were rejected by the drivers did not provide a defence to the employer. Whilst the opinion of the drivers was something that the employer would want take into account, they were not bound by it. The employer could have overridden the drivers’ rejection or considered alternative means of avoiding the risk. Therefore it was not necessary to leave the controls as they were.

Importance of the Risk Assessment and Yaktrax as PPE

In Kennedy v Cordia (Services) LLP 2013 CSOH 130 a care worker slipped and fell (breaking her wrist) on the path outside the home of an elderly patient that she was visiting. The path was covered in snow and ice. It was left to the employee to choose their own footwear and no training on appropriate footwear was given.

Lord McEwan held that the employer had breached their duty to conduct a suitable and sufficient risk assessment (under Regulation 3 of the Management of Health and Safety at Work Regulations 1999). The employer had recorded the risk as ‘tolerable’ where following their own risk matrix it ought to have been recorded as a ‘substantial risk’. The risk could not be said to be negligible and ignored.

The employer had also breached their duty to provide suitable PPE (under Regulation 4 of the PPE Regulations 1992). It was shown that the use of footwear add-ons, such as Yaktrax, helps to control and reduce the risks of slipping on ice and snow. The employer had not given consideration to the use of such devices. This lack of consideration of itself showed that whatever precautions the employer thought they were taking, it could not amount to other equally or more effective means of controlling the risk as required by Regulation 4 where PPE is not provided.

If you have any queries about your duties under health and safety law the HSE team at Burness Paull are here to help - just give us a call.

Ashok Rebello