Workplace Regs – condition of seating over course of years
The claimant worked on the night shift at a care home from March 2001. There were long periods at night during which the claimant had to provide surveillance, which involved sitting for substantial periods of time on a landing within the care home. There were some other duties, including hourly visits to the dormitories, which broke up the periods of time when they were required to just sit.
The claimant’s case was that, when he started doing the night shifts there was no suitable seating, only cushions that had no lumbar support, which caused back pain that persisted for a number of years until a suitable seat was provided in January 2005. The defendant had provided the cushions and the claimant took the view initially that he was content to use them. It was not until November 2001 that the claimant began to complain about the cushions. It was noted in a record of a meeting that new furniture was awaited and that the cushions should be removed.
It was accepted that any seating to be used on the landing had to meet a number of requirements. Firstly, it had to be not too comfortable so as to ensure that the staff stayed awake while on duty. Secondly, it had to be easy to remove from the landing in the event of a fire. Thirdly, it had to be such that it could not be used inappropriately by any of the children, for instance, as part of a barricade. Finally, it had to provide adequate comfort and lumbar support.
By early 2002, the claimant was suffering from severe back pain. The report produced by the claimant’s orthopaedic consultant stated that such pain was caused, on the balance of probabilities, by sitting on cushions for five or six hours each night.
At various times between early 2002 and January 2005, the claimant brought the lack of seating and the effect it was having on his back to the attention of his line manager, his own GP and the defendant’s occupational health department. During this period different forms of seating, such as beanbags, were provided for the claimant and his colleagues to try out. They were all rejected as unsuitable for various reasons and so the claimant would periodically revert back to using the cushions for seating.
At the end of 2004, the defendant provided the claimant with a chair that had adjustable height and pump-action lumbar support. The claimant used the chair and his back symptoms gradually resolved within a few months and had completely abated by the date of the trial.
In terms of liability it was held that cushions were not suitable seating. Therefore, the defendant was in breach of Regulation 11(3) and 11(4) of the Workplace (Health, Safety and Welfare) Regulations 1992. The fact that there were other chairs that were made available that were, or may have been suitable, did not negate the breach of Regulation 11. The defendant had provided the cushions, the cushions were unsuitable and the defendant had allowed the claimant to use the cushions. The Defendant was therefore liable.
Paul Fryer -v- Bradford Metropolitan District Council, 19 January 2006, Keighley CC