Work equipment: seizing control
The circumstances in which the Provision and Use of Work Equipment Regulations 1998 (PUWER) impose obligations on an employer to protect workers have been restricted by the House of Lords, writes Keith Patten.
The law lords have decided that, in certain circumstances, an employee working away from the workplace need not have the same health and safety protection as someone based on site.
They have effectively “invented” a limitation in the applicability of the regulations that is not found in the regulations and which has the potential to restrict significantly the protections offered to injured workers.
In Smith -v- Northamptonshire County Council [2009] UKHL 27, a case pursued by Thompsons on behalf of UNISON, the House of Lords ruled that the PUWER obligations on an employer only apply as far as the employer has some measure of control over the work equipment, even though Regulation 3 (2) contains no such requirement.
Wooden ramp
Mrs Smith worked for the defendant local authority as a carer and driver. Part of her duties involved taking disabled people from their homes to a day centre.
She attended the home of one wheelchair user, as she had done many times before. There was a wooden ramp leading up to the door. This had been installed years previously by the National Health Service, not by the local authority.
The local authority had however inspected the ramp as part of their general duties to risk assess the claimant’s work and had trained their employees to make brief visual checks on the ramp on every visit. The accident happened when Mrs Smith was pushing the wheelchair down the ramp. The edge of the ramp gave way and she was injured.
She sued the local authority alleging a breach of the PUWER.
Though all sides agreed that the defect was latent and could not have been discovered on reasonable inspection, the issue was not the nature of the obligations imposed by the regulations, but the more fundamental question of when they apply and against whom.
The Court of Appeal decision in Stark -v- Post Office [2000] PIQR P105 confirmed that liability for failure to maintain work equipment is strict – liability will arise even if the causative defect was latent and could not have been identified on reasonable inspection. When and where PUWER applies is, therefore, a key health and safety battleground.
Two issues
There are two issues in determining whether PUWER applies. First, whether the item is work equipment within the very wide definition contained in Regulation 2(1).
The House of Lords decision in Spencer-Franks -v- Kellog, Brown & Root [2008] UKHL 46 confirmed that work equipment did indeed have the very wide meaning assigned to it by Regulation 2(1).
On that basis the defendants conceded (in the House of Lords) that the ramp in Smith was work equipment.
However, the regulations do not apply to all work equipment. They apply to a sub-set of work equipment defined in Regulation 3, and so the second issue is what is in that sub-set.
This would seem to depend on whether the defendant is an employer or someone else. So Regulation 3(2) imposes the obligations on employers in respect of work equipment that is “provided for use or used by an employee of his at work”.
Regulation 3(3) imposes the obligations on non-employers only in so far as they have control over the work equipment, the way in which it is used or the person who uses it, and then only to the extent of that control.
The decision in Smith
But, in Smith, all five law lords declined to apply the plain words of Regulation 3(2), which would have led to the conclusion that Mrs Smith was manifestly using the ramp (admitted to be work equipment) at work and was therefore covered by the regulations.
They all read into Regulation 3(2) some limiting factor that, in general terms, could be described as a requirement that the employers have some measure of control over the work equipment. Their only disagreement was at the margins as to what exactly was required to satisfy the appropriate test of control. This made no difference to the outcome.
The majority of them said Regulation 3(2) was satisfied only where there was a specific connection between the equipment and the employer’s undertaking. This connection was defined as being where the work equipment has been “incorporated into and adopted as part of the employer’s business or other undertaking”.
The minority of the Judges accepted the need for a connection but said it was satisfied where the employer can inspect the equipment and/or instruct the employee not to use it.
The distinction is essentially between requiring the employer to have control over the equipment itself and simply having control over the employee’s use of the equipment.
Comment
Regulation 3(2) was clear enough and, if followed, would produce a particular result. It seems that the Law Lords did not like this and so have re-written the regulation to make it say something it simply does not.
But even if the control test is accepted, it is still quite hard to see how Mrs Smith fails to win on the facts: the council knew she was using the ramp, had inspected it and had the power to instruct her not to use it and to provide her with an alternative.
One of the judges did say that, even if the control test was the correct test, he would have found it to be satisfied on the facts.
So, where does Smith leave the applicability of the Provision and Use of Work Equipment Regulations? The wide definition of work equipment was not in issue and appears to have been approved of. Most items of equipment used at work will continue therefore to fall within the regulation 2(1) definition that the item in question must in some way be related to the job.
But whether the Regulations apply to an employer is now clearly subject to the test of control notwithstanding the complete absence of any reference to such requirement in Regulation 3(2).
In practice, this will mean much legal wrangling in the future. Clearly excluded will be items of equipment totally outside the control of the employer, such as items used by the travelling employee at the premises of customers about which his employer knows nothing.
What remains unclear is the position of those items of which employers are aware but do not own, but whose use they can influence.