Risk assessment - A risk too far | Thompsons Solicitors

Risk assessment - A risk too far

Henrietta Phillips explains the Appeal Court ruling that risk assessments must be proactive.

The law says that employers must be proactive and carry out risk assessments to identify any hazards that might exist in the workplace and evaluate the extent of the risks involved.

But, as any trade union health and safety rep knows, they all too often wait until a risk is brought to their attention, or worse, until someone is injured, before doing something about it.

Thompsons won a claim in the Court of Appeal (CA) on behalf of an RMT member which could prove a template to argue difficult claims for those injured at work due to wrongly timed risk assessments.

In Allison -v- London Underground [2008] EWCA Civ 71, the CA ruled that it is wrong for employers to carry out risk assessments after a hazard is brought to their attention. Bosses have a duty to assess risks to their workers regardless of whether any potential hazard has been brought to their attention, the court said.

Dead man’s handle

The case involved a London Underground driver who developed a painful condition called tenosynovitis in her right wrist as a result of using the traction brake controller (TBC), or dead man’s handle, on Jubilee line trains. She can no longer drive trains as a result.

LUL knew there was a risk of work-related upper limb disorders (WRULDs) from using TBCs. When designing the Jubilee Line trains it consulted with some experienced drivers and experts, including at least one ergonomist.

The main focus of the consultation was the position of the armrest and the adjustability of the driver’s seat, although there was also discussion about the operation of the TBC itself, in particular whether it should be capable of operation in both a clockwise and anticlockwise direction, or whether it should only operate clockwise.

At the suggestion of two of the drivers consulted on the design, the end of the handle, which is toward the driver when the handle is at rest, is “chamfered” or “bevelled”. This, it was suggested by two drivers, would be more comfortable for a driver when grasping the handle.

Unlike during other aspects of the redesign consultation process, LUL managers accepted this advice without consulting the ergonomists.

The problem for the driver whose claim was considered by the CA was that, due to the small size of her hands, she found it comfortable to rest her thumb against the chamfered end. Indeed she thought this was what the design feature was for. Other drivers had been doing the same thing from time to time.

No special instructions were given to drivers on how the thumb was to be positioned in relation to the chamfered end while the handle was under pressure, although drivers were trained to keep their wrists straight to avoid developing tenosynovitis.

After it became clear that it was the position of the thumb that caused this employee’s condition, LUL introduced a new element into the training of drivers, advising them of the need to keep their thumbs tucked under the handle and not to let them rest on the chamfered end.

Training not inadequate

The first court to consider the case said that the test of adequacy of training should depend on the employer’s past experience of problems and the information the employer received about a particular employee to be trained.

That court noted that the claimant had not reported problems or symptoms with the handle before injury. The court said this fact, and that the employer could not have reasonably foreseen the injury, meant the training she received was not inadequate.

But the Court of Appeal’s three judges did not agree that the training provided had been adequate, given what LUL should have known about the risks arising from, what the court called “the activities of the business”.

In other words, LUL should have known a new or redesigned piece of equipment needed to be risk assessed and would require employees to be properly trained in its safe use. It was not enough to provide the training after the risks were known.

The legal ruling is important because it is about much more than the failure to train drivers in the correct use of the redesigned handle. It confirms that the law requires all employers to proactively carry out risk assessments and not wait to be asked.

Insufficient attention

The CA said that, in general, when compensation claims have been brought by people who have been injured at work and the issue of whether the employer was in breach of its duty of care to the employee, court judges have given insufficient attention to risk assessments.

The proactive duty on employers to carry them out became law in 1992. Yet judges have tended to drift back to the position before then, where a risk had to be brought to an employer’s attention before an assessment was carried out.

The court said: “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.”