7. Equipment at work

Changes and developments since last year

• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was enacted in April 2012, making it significantly harder for workers to fund personal injury claims against their employer.

• The HSE fifth annual Ladder Exchange initiative resulted in the handing in of 1,270 unsafe ladders.

• The Löfstedt review has recommended a review of the Work at Height Regulations by April 2013 “to ensure that they do not lead people to go beyond what is proportionate.”

• A new European Directive covering all musculoskeletal disorders is likely to be adopted in late 2012.

Display screen equipment

The Health and Safety (Display Screen Equipment) Regulations 1992 (DSE Regulations) lay down minimum health and safety requirements for work with visual display units (VDUs) or display screen equipment (DSE).

The main health concerns surrounding the use of DSE include headaches, eye strain, repetitive strain injuries (RSI), stress and fatigue. In addition, there is some concern about whether electromagnetic radiation emissions from DSE are harmful, particularly in the early stages of pregnancy.

The regulations cover display screen equipment, microfiches and process control screens. All workstations must comply with the minimum standards the regulations lay down.

Under the DSE Regulations, employers have a duty to assess the risks to a user’s health from DSE workstations and to reduce the risks identified to the lowest level reasonably practicable. Assessments must be kept up to date. If a workstation is shared by more than one user, the assessment must be repeated for each individual. The schedule to the DSE Regulations lays down minimum requirements for workstations and includes details about the display screen, the keyboard, the work desk or surface and the work chair.

A DSE user is defined as “an employee who habitually uses display screen equipment as a significant part of his/her normal work”.

Guidance to the regulations gives the following criteria for users:

• the individual depends on the use of DSE to do the job;

• the individual has no choice on use or non-use of the DSE;

• the individual needs significant training and/or particular skills in the use of DSE;

• the individual normally uses DSE for continuous spells of an hour or more at a time;

• the individual uses DSE in this way more or less daily;

• fast transfer of information between the user and screen is an important requirement of the job; and

• the performance requirements of the system demand high levels of attention and concentration by the user, for example, where the consequences of error may be critical.

If all or most of these criteria are met, the employee is a “user”. Employers must provide adequate health and safety training for users and repeat this on each occasion that the organisation of a workstation is altered. Employers must also provide information about workstation health and safety and how they are complying with the regulations.

The workstation minimum requirements apply to all workstations covered by the regulations. Anyone who is a word processing worker, secretary or typist, data input operator, news sub-editor or journalist is included.

Also included are workers in telesales, customer complaints, accounts enquiry and directory enquiry operators, as well as air traffic controllers, financial dealers and graphic designers. Other workers who are definitely covered include microelectronic assembly or testing operatives; television editing technicians; security control room operatives and librarians.

The guidance also sets out other jobs that may be covered by the regulations, depending on the nature of the work, including airline check-in clerk, receptionist and community care worker. The guidance clearly states that these workers should be assessed, even if DSE work is not a significant proportion of their work.

The guidance highlights three main risks to health from DSE work:

• work-related upper limb disorders, also called repetitive strain injury (RSI), which cause pain in hands, wrists, shoulders, the neck and the back;

• eye and eyesight effects including headaches, sore eyes and blurred vision; and

• stress and physical fatigue.

DSE users must be provided with free eye and eyesight tests on request and with further tests at regular intervals.

HSE guidance to the regulations says that employers should be guided by the clinical judgment of the optometrist or doctor on the regularity of testing.

Union advice is to seek agreement for repeat testing at specified intervals, such as two years, or on the advice of the optometrist.

Additional tests must be provided on request for users who experience visual difficulties such as headaches.

Users must be provided with information about their rights to eye and eyesight tests and arrangements for providing the tests. Where the tests show that spectacles are needed for DSE work, they must also be provided free.

Breaks for DSE users

Regulation 4 of the DSE Regulations says the work of DSE users must be planned so that there are periodic breaks or changes of activity to reduce workload at the DSE. Unions and safety professionals advise a break from intensive DSE work every 30 minutes.

HSE guidance to the regulations gives the following general advice on breaks:

• breaks should be taken before the onset of fatigue;

• breaks or changes of activity should be included in working time; and

• short frequent breaks are more satisfactory than occasional longer breaks. For example, a five to 10-minute break after 50-60 minutes continuous work is likely to be better than a 15-minute break every two hours.

The guidance says users should be allowed some discretion as to when they take breaks and how tasks are carried out. It also warns employers that break-monitoring software can have negative effects.

The guidance to the regulations also addresses the issue of pregnant women and DSE work. It says that taken as a whole, research has not shown any link between miscarriages or birth defects and work on display screen equipment. It advises, however, that while pregnant women do not need to stop work with VDUs, to avoid problems caused by stress and anxiety, women who are pregnant or planning children and are worried about working with VDUs should be given the opportunity to discuss their concerns with someone adequately informed of the current authoritative scientific information and advice.

Rest breaks and monotonous work

Additional protection is provided by Regulation 8 of the Working Time Regulations (see Chapter 9: Hours of work). This says that where the pattern of work puts the health and safety of any worker at risk, especially if work is monotonous or the work rate is pre-determined, the employer must ensure workers get adequate rest breaks. This is on top of the basic rest break entitlement under the Working Time Regulations of 20-minutes away from the workstation after working six hours in a day.

A new European MSDs Directive

A proposed new directive to cover all musculoskeletal disorders (except vibration) has been in the pipeline since 1990, to address problems relating to both manual handling (see Chapter 8: Physical Hazards at Work) and display screen equipment. In 2009, a Working Group of the Advisory Committee on Safety and Health commissioned more research, and in March 2012, an EU Impact Assessment Board considered the proposal. The HSE expects the new Directive to be adopted in late 2012.

Machinery and other equipment

The Health and Safety at Work Act 1974 (HSWA) includes a duty to provide and maintain safe plant and safe systems of work and a duty to inform, train and supervise. The Provision and Use of Work Equipment Regulations 1998 (PUWER) set out more detailed requirements concerning all equipment used at work across industrial and service sectors. PUWER covers everything from photocopiers to combine harvesters.

For someone to have the obligation to maintain equipment, it must normally be within their power to be able to do so without obtaining some one else’s consent (Smith v Northamptonshire County Council [2008] EWCA Civ 181).

Also in 2008, the House of Lords reversed a decision of the Scottish Court of Session, in Spencer-Franks v Kellogg Brown and Root Ltd [2008 UKHL 46]. A worker repairing a door closer was injured by it. The Court of Session held that the door closer was not “work equipment” within the meaning of the PUWER Regulations. The House of Lords (now the Supreme Court) reversed this decision. It held that the door closer was apparatus for use at work and that this was sufficient, and found the employer liable to maintain it.

The most important requirement of the regulations is that the equipment must be suitable for the job it has to do. The Court of Appeal has ruled that work equipment should not be regarded as unsuitable when injury results from the mishandling of equipment that is otherwise safe to use.

Employers must:

• take into account working conditions and hazards when selecting equipment;

• ensure equipment is well maintained and in good repair and working order, and keep maintenance logs up-to-date;

• ensure equipment is inspected after installation and before being put into service for the first time, or after assembly at a new site or in a new location. Where work equipment is exposed to conditions causing deterioration, it must be inspected at regular intervals and each time there is a possibility that the safety of the equipment has been jeopardised;

• ensure that where specific risks are involved, use is restricted and that any repair, servicing, modification or maintenance is carried out by those who have received adequate training; and

• ensure that appropriate information, instruction and training is given to employees and any supervisors or managers.

The need to maintain work equipment in good repair was confirmed in the following case:

There are specific requirements regarding: dangerous parts of machinery; protection against particular hazards; high or low temperatures; control systems and devices; isolation from sources of energy; stability; lighting; maintenance operations; and markings and warnings.

In 2008, the Court of Appeal found in favour of a tube driver who was injured by the “dead man’s handle” brake on trains. The Court found that London Underground failed to carry out a risk assessment and to train RMT member Latona Allison, as set out in PUWER (Allison v London Underground Ltd [2008] IRLR 440).

The case provided important guidance on the duty to ensure that workers who use work equipment receive adequate health and safety training. It established that the duty to provide training is mandatory.

Part III of PUWER requires employers and other duty-holders to ensure that equipment is safe to use by preventing or controlling risks. This could involve, for example, fitting roll-over protective structures (ROPS), falling object protective structures (FOPS), seat restraints (seat belts, lap belts and so on) and driver visibility aids such as mirrors.

In addition to PUWER, the Lifting Operations and Lifting Equipment Regulations 1998 apply across all industry sectors.

Work at height

The Work at Height Regulations 2005 apply to all work at height where there is a risk of a fall liable to cause personal injury.

The Work at Height Regulations are relevant to the construction industry, as well as to window cleaning, industrial cleaning and maintenance, container top working in docks, working on the back of a lorry, erecting bill posters and arboriculture activities.

The Work at Height (Amendment) Regulations 2007 extended the regulations to workers who are paid to lead or train climbing and caving activities in the adventure sector.

The regulations require employers to ensure that:

• all work at height is properly planned and organised;

• those involved in work at height are competent;

• risks from work at height are assessed and appropriate work equipment is selected and used;

• the risks from fragile surfaces are properly controlled; and

• equipment for work at height is properly inspected and maintained.

The fundamental principle is that work at height should be undertaken according to the staged process outlined in Regulation 6 — the “hierarchy” — so that safe systems of work are established, proper planning and organisation takes place and appropriate equipment is chosen and used correctly.

Regulation 6 says that employers must ensure work is not carried out at height where it is reasonably practicable to carry out the work safely other than at height.

Where work is carried out at height, employers must take suitable and sufficient measures to prevent any person falling a distance liable to cause personal injury. Schedules contain requirements for scaffolding, ladders, rope access and positioning techniques.

Work at Height Regulations and the Löfstedt review

Unions are very concerned that even though falls from height are the most common cause of workplace fatalities, the Löfstedt review has singled out the Work at Height Regulations for review by April 2013 “to ensure that they do not lead people to go beyond what is proportionate”. In particular, Löfstedt suggests that including stepladders in the regulations amounts to “gold-plating”, as the Directive refers to “rungs and stiles”.

The HSE Ladder Exchange initiative

In 2011, the HSE’s fifth annual Ladder Exchange resulted in 1,270 unsafe ladders being handed in. This will be the last Ladder Exchange programme run by the HSE. It will be managed in future by a trade body, the Ladder Association. The Ladder Exchange initiative was part of the HSE’s ‘Shattered Lives’ campaign to reduce slips, trips and falls from height in the workplace. The HSE estimates that around two million people work on ladders daily in the UK.

Personal protective equipment

The Personal Protective Equipment at Work Regulations 1992 (PPE Regulations) require employers to:

• assess risks and select suitable protection;

• ensure all personal protective equipment (PPE) is maintained, cleaned or replaced as appropriate, and kept in efficient working order and in good repair;

• accommodate PPE to protect it from contamination, dirt, loss or damage; and

• inform and train employees about PPE use and maintenance.

The Personal Protective Equipment Regulations 2002, place a duty on any responsible person who sells PPE to comply with certain requirements and contain rules about the external organisations allowed to test and certify PPE.

A case at the House of Lords limited the extent of the duty to maintain PPE:

But contrast a 2011 ruling in which the High Court decided that employers should provide employees working in damp conditions for prolonged periods with protective clothing, even if there was no expert or other evidence to confirm risk of injury:

Any PPE provided must be suitable. It is unsuitable if it is badly fitted, uncomfortable, puts a strain on wearers or makes the work unnecessarily difficult. Employers must take all reasonable steps to ensure employees use PPE properly. It is not enough just to make PPE available to staff. Employees must use PPE in accordance with training and instructions given. They must also be involved in the selection of PPE, and should be given an informed choice where possible. All PPE must be provided free of charge to workers.

The HSE advises that PPE must be treated as a “last resort”, rather than a quick or cheap method of controlling risks. There may well be a better solution, for example, improving ventilation, changing the way the job is done, or improving guards on machinery. Sometimes PPE will still be needed in addition to other improvements (see examples in Chapter 6: Hazardous substances).

PPE is not suitable unless the period for which it is worn is considered, and the characteristics of the workstation of each person are taken into account. The HSE also states that, in the interests of hygiene, PPE should be provided for use only by the person at risk.

Employers must make information available to employees on the risks controlled by PPE, and on any actions taken to ensure the equipment is in good working order.

Employers must organise demonstrations showing how to wear PPE, “where appropriate, and at suitable intervals”.

Agency workers and PPE

Agency workers have the same rights to be provided with properly fitting personal PPE as directly employed workers, at the cost of the employer. In March 2011, construction workers’ union UCATT called on the HSE to take action after becoming increasingly alarmed that many employment agencies require construction workers to supply their own PPE, or charge the worker if they supply it.

The Construction (Head Protection) Regulations 1989 (CHP) impose a duty on employers to ensure that so far as reasonably practicable every worker at work on a site covered by the regulations wears “suitable head protection” unless there is no foreseeable risk of injury to the head other than by falling.

The CHP Regulations were introduced following years of union campaigning and are credited with helping to reduce death rate from head injuries by three quarters, from 48 a year to 14. The HSE acknowledges that “prior to their introduction, concerted efforts to increase voluntary use of head protection had been made but with little effect” and that “the wearing of head protection has subsequently become culturally embedded in most parts of the industry, and its use is generally a site rule”.

The Construction (Head Protection, Regulations and the Löfstedt review

To the anger of unions, one outcome of Löfstedt review is a proposal to revoke the CHP Regulations. Unions argue that this would send a dangerous and confusing message to workers and employers that head protection is not important. It is especially dangerous when combined with another suggestion made by the review, namely the removal of self-employed workers from the scope of health and safety legislation (see Chapter 12).

The rationale for revoking the CHP Regulations is that workers are already protected by the Personal Protective Equipment at Work Regulations 1992 and the Construction (Design and Management) Regulations 2007.

Womens Engineering Society (WES) Survey — PPE and women workers

According to a survey by the Womens’ Engineering Society (WES) many employers do not comply with the law and guidance on PPE when it comes to equipment issued to female staff. Eighty two per cent of female survey respondents said they had been required to wear ill-fitting jackets, 64% ill-fitting gloves, and 58% ill-fitting shoes or trousers.

Details of the WES online survey can be found at: www.wes.org.uk

Unions highlight ill-fitting PPE problems

Public services union UNISON member Anthony Roach worked for Stockton Borough Council in its Neighbourhood Services team. He wore body armour to protect him against stabbings. He worked 11-hour shifts, wearing the body armour at all times, but it was faulty, second-hand and badly fitting and as a result he developed back and shoulder pain. He and colleagues complained but nothing was done to resolve the problem and eventually Mr Roach had to be placed on light duties. Mr Roach was awarded £2,000 compensation for his employer’s failure to provide adequate PPE.

In another case involving ill-fitting PPE, a traffic officer for the Highways Authority Traffic Information Services, PCS member Deborah Allen, was awarded £3,600 after unsuitable footwear meant she developed Achilles tendonitis and was off work for three months. She told her employers that she suffered from eczema and that the synthetic boots they supplied would worsen her condition, and her GP also wrote to her employers. But she was told she must wear the work boots, rather than her own leather boots. As a result her feet became so painful that she could not walk.

TUC survey reveals workers forced to pay for PPE

A TUC survey published in July 2012 reveals more than one in five workers are being forced to pay for it out of their own pocket. In total more than one in five (20%) of respondents to the survey said that they had to pay for providing or replacing all or some of the equipment they needed for their work.

Women workers were even less likely than men to have their safety equipment provided, with more than 15% having to provide all or some of their own PPE, usually foot protection or overalls — compared to 10.5% of men.

Even where the employer provided PPE, the survey found that the worker usually had to clean the equipment themselves or pay for it to be cleaned. Of those whose equipment needed cleaning, more than three in five (60%) claimed that their employer made no arrangements for providing, or paying the cost of, cleaning.

It is illegal for an employer to charge for any safety equipment. The law also says that every employer has to ensure that any PPE provided to their employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.

TUC general secretary Brendan Barber, said: ‘The fact that so many employers are flaunting the law is an absolute scandal. Safety equipment is needed to ensure that workers are protected from injury or disease, yet there appears to be very little enforcement of the law. As a result many workers — often those in low-paid service jobs like catering and cleaning — are having to fork out from their own pocket, or go without. This must stop. With the governments cutback of proactive inspections in the workplace this abuse can only grow.”

TUC footwear guidance

The TUC guide for safety representatives on feet and footwear, Working feet and footwear, advises that employers must ensure that their risk assessment includes risks to the feet as well as slipping risks.

The guidance is on the TUC safety website at: www.tuc.org.uk/extras/footwear.pdf