How much training is adequate for the purposes of health and safety?
16 May 2008
Allison v. London Underground Limited (2008)
EWCA Civ 71
This recent Court of Appeal decision states that
the test for the adequacy of training for the purposes of health
and safety was what training was needed in the light of what the
employer ought to have known about the risks arising from the
activities of his business. In addition, the Provision and Use of
Work Equipment Regulations 1998 impose a duty on the employer to
investigate the risks inherent in his operations, taking
professional advice where necessary.
Facts
The Claimant was employed by London Underground as
a tube driver. She developed tenosynovitis as a result of
using a traction brake controller, a cylinder shaped handle, which
was 5 inches long and about 1 inch in diameter. It was to be
continuously pressed to allow the train to go forward.
When the brake controller was designed London
Underground took ergonomic advice as it was known that there was a
risk of work related upper limb disorder (WRULD). This was
due to the position of the seat and the arm rest. Advice was
therefore provided to the drivers that they should not flex their
wrists when using the brake controller. In addition to expert
advice, two experienced drivers also suggested adding a grooved end
to make the brake controller easier to hold. London
Underground accepted this recommendation but did not take expert
advice before introducing the grooved end. No instructions
were given to drivers as to how they should position their thumb on
the grooved end. Therefore, the Claimant incorrectly thought
that this end was for her thumb to rest on. However, it was
accepted that holding the grooved end in this position caused her
to develop tenosynovitis.
The Claimant had alleged that London Underground
had breached Regulation 9 of the Provision and Use of Work
Equipment Regulations 1998. Regulation 9(1) states that
“Every employer shall ensure that all persons who use work
equipment have received adequate training for purposes of health
and safety, including training in the methods which may be adopted
when using the work equipment, any risks which such use may entail
and precautions to be taken”.
As stated above, no training was given to the
drivers as to where they should put their thumb when driving and
the only warnings given to the drivers were how to avoid WRULD by
flexing the wrist. However, following the Claimant’s injury
the drivers were then told to tuck their thumbs under the
handle.
The Court of Appeal held that:
- Regulation 9 of the Provision and Use of Work
Equipment Regulations 1998 was not “no fault” legislation (i.e.
does not require proof of any fault on the part of the
employer). Such legislation was rare in English law and only
applied in certain areas, for example Regulation 5 of the Provision
and Use of Work Equipment Regulations. However Regulation 9
states that an employer “shall ensure adequate
training”. This implied a mandatory duty to train but the key
word was “adequate”. An employer must provide training
and it must be adequate.
- The test for the adequacy of training for the
purposes of health and safety was whether it dealt with the risks
that the employer knew about. Adequate training was adequate
if it dealt with the risks which an employer knew about and it was
to impose no greater duty than the existing common law.
In addition, the Court of Appeal Judge said that
the judge at first instance was mistaken in saying that training
was adequate as it had dealt with risks that were foreseeable to
the employer. He also failed to consider whether the risk
assessment carried out after the introduction of the traction brake
controller was sufficient and suitable so as to comply with
Regulation 3 of the Management of Health and Safety at Work
Regulations 1999. He noted that the risk assessment had said
training was needed. Training was only given to the drivers
in relation to the position of the seat and the arm rest.
Therefore, London Underground should have taken
expert advice on the need for the drivers to be trained in the way
that they held the handle. Had they taken advice, it would
have identified the need for drivers to be trained in the way in
which they held the handle in order to minimise the risk of strain
injury. Therefore the training given was not adequate.
Consequences for
employers
Employers must make sure that they take sufficient
steps to ensure that they comply with their statutory duties and
with the duty to make a risk assessment. Regulation 3 of the
Management of Health and Safety at Work Regulations 1999 states
that employers must carry out sufficient risk assessments and any
failure to do so which results in an injury is an actionable breach
of the Regulations.
L J Smith said “What the employer ought
to have known will be what he would have known if he had
carried out a suitable and sufficient risk assessment… a suitable
and sufficient risk assessment will identify those risks in respect
of which the employee needs training… Risk assessments are meant to
be an exercise by which the employer examines and evaluates all the
risks entailed in his operations and takes steps to remove or
minimise those risks. They should be a blueprint for action”.
The argument “what difference would a risk
assessment have made or why was expert evidence required if only
common sense was needed?” may not be a sufficient argument in less
straightforward cases and therefore it is important for employers
to always carry out risk assessments.
Employers must also take steps to keep abreast of
developments in their line of business. The case therefore
links the duty to carry out a risk assessment with adequate
training. If a risk assessment is inadequate in that it
failed to highlight a risk and take steps to minimise the risk,
liability will follow.