WRULD Claims heard in England, Scotland and Wales
References to and/or interpretations of HSE Guidance Documents - Wells-Cockburn -v- The Bristol Debt Advice Centre and another
At paragraph 40 of the Judgment on the 15th August 2008, Mr Recorder Abbott paraphrases the HSE's guidance on who should do risk assessments and goes on in paragraphs 41 & 42 to consider the Defendant's apparent failure to perform adequate risk assessments:
What about the question of risk assessments? A risk assessment is an important part now of everyday life in offices all over the country, and risk assessments were taken out and those assessments are referred to in the Regulations and they are also referred to in the guidance at p. 15 of the guidance, and it says:
'Who should do assessments? They should be made by health and safety personnel or other in-house staff if they have been trained or have the abilities required to do such an assessment, and the assessment should identify any hazards, it should draw upon any additional sources of information on risk as appropriate; it should draw valid and reliable conclusions from the assessment which made a clear record of the assessment and communicate the findings to those who need to take the appropriate action.'
It also says at a different part of the guidance that it is important to get the information from the user as an essential part of the assessment:
'The inclusion of such views is likely to result in better information on existing conditions and providing a feeling of ownership over the findings.'
[Counsel for the Defendant] says that it does not necessarily involve checking on the actual working conditions or the workload of an individual, but I am satisfied that that would also be part of any assessment, to look carefully at somebody's workload.
That is where [Counsel for the Claimant] really puts the centre of his arguments. He is saying that because this lady was doing a lot of typing and the intensity was unusual, that there was a risk and therefore her workload, together with her workstation, her working day, the way in which she carried out her typing, should have been made the subject of much more careful examination and much potential assessment of risk. He says - and it is supported by both ergonomic experts - that the risk assessments that were carried out were not in accordance with the Regulations and were inadequate. I think, if you take them on their own, that is certainly the case, and it certainly did not involve a detailed examination of her workload and the way in which she carried out her typing and what she was doing every minute of the day. I suppose [Counsel for the Claimant] would say that if they discovered she was in fact typing 80% or 90% of the day, and she was typing non-stop at any particular given period of time, that that should have raised an eyebrow. It is right to say that [the Ergonomics Expert instructed by those acting on behalf of the Defendant] says that if you type for more than an hour non-stop it is not very desirable, two hours would be probably undesirable, and [the Ergonomics Expert instructed by those acting on behalf of the Claimant] says there is some literature that suggests that you should not type more than four hours in a day. I find that difficult to accept, and some of the literature that he has presented in his red bundle is clearly rather slanted, produced by those who have an interest in looking after the wellbeing of individuals such as unions and so on, and there is something of an industry in producing material about work-related disorders which makes you just have to be a little bit careful that you do not take your feet off the ground.
But is [Counsel for the Claimant] right in saying that because these risk assessments are on the face of it inadequate Regulations that that is the end of the matter? That his client is entitled to succeed? I do not think it works like that. He has to establish that there was a significant increase in her workload in the period prior to the onset of her symptoms before, in my judgment, the question as to the adequacy of a risk assessment comes into play. If they did not know of the risk, the question is whether they ought to have known of the risk. In my judgment, I do not think the evidence called by the Claimant sufficiently establishes on the balance of probabilities that they did or ought to have known of a reasonably foreseeable risk because of her workload. I have said already that I think that what she was doing was pretty usual in a busy office, and also, as [Counsel for the Defendant] points out, that although you might criticise the risk assessments taken on their own, if you look at the overall documentation, of admin meeting notes, of administration meetings, of reviews carried out of the Claimant and her duties, and what is described as 'supervision meetings', if you put it all together and if you remember that this is a small charity with limited resources, in my judgment, they did a pretty reasonable job. If that is the case, against that background, I cannot say that the breach or any suggested breach of these Regulations at the end of the day makes any difference and I do not find that there has been a sufficient temporal connection between an increased workload and her symptoms. Therefore, at the end of the day, it does not seem to me that it is reasonable to expect the Defendants to have appreciated the risk to which [Counsel for the Claimant] refers.
V2.01
In the Judgment on the 15th August 2008, at paragraph 38, Mr Recorder Abbott states:
It is interesting to note that in the guidance for the Regulations which is contained in helpful documentation provided by [the Ergonomics Expert instructed by those acting on behalf of the Claimant], the guidance to these Regulations provided by the Health and Safety Executive, it says, for example, with regard to breaks that:
'In many tasks natural breaks or pauses occur as a consequence of the inherent organisation of the work. Whenever possible, jobs using DSE should be designed to consist of a mix of screen-based and non screen-based work to prevent fatigue and to vary visual and mental demands. Where the job unavoidably contains spells of intensive DSE work whether using the keyboard or input device, reading the screen or a mixture of the two, these should be broken up by periods of non-intensive, non-DSE work. Where work cannot be so organised, for example, in jobs involving only data or text entry or screen monitoring requiring sustained attention and concentration, deliberate breaks or pauses must be introduced.'
That is the guidance with regard to the Rule 4 providing breaks in the working day, and it is noticeable that it really accepts that there may well be natural breaks and it is only where the work is so organised that breaks simply do not get taken or if somebody decides they are not going to take breaks that any form of what might be described as 'coercion' should take place. In this office, as far as breaks are concerned, everybody took breaks; there was flexible working time; people would take breaks when they felt like it; go out for a cigarette or a cup of tea; there would be micro-breaks in all the typing tasks, and it is quite right to say - as [Counsel for the Defendant] has pointed out - that if you look through the documentation and if you look through the work records, this lady was doing a lot of other tasks in addition to typing. She was carrying out IT tasks; she was putting software on to the computer; she was doing filing; and she was answering the telephone; letting people in; and in my view what could be described as 'general office work' - so she was not typing the whole time and therefore one can be satisfied that she was taking sufficient breaks, or at least she had the opportunity to take sufficient breaks, and she knew - from general working practices and in my view common sense from her employers - that she ought to be taking breaks. I do not think that this is a case where the Defendants were in breach of Rule 4.
V2.01
Last updated: 14/05/2013