Business managers and governors need to be aware of the full extent of responsibility schools and colleges must bear when staff carry out physical tasks, says Richard Bird.

Unconditional glove

One might not have expected the Lords Justices of Appeal to have troubled their distinguished minds with the provision of gardening gloves in Hull. The facts of the case were simple enough. The workers concerned were employed to strim council house gardens. To get at the grass they sometimes needed to clear it of debris first. They were provided with litter pickers, rakes and shovels.

They were also expected to deal with rubbish in black plastic bags, left by former residents or thrown over the fence by other citizens of Hull. There might or might not have been an expectation that they should open the bags to check what was in them; but if there was, it was more often not done than done.

On the particular occasion that led to the case, one of the workers seized a bag with some force. An object in the bag cut through the gloves which he had been issued with and severed an artery and tendon.

Subsequently he sued his employers, Hull City Council, on the grounds that he had not been provided with safety equipment in accordance with the Personal Protective Equipment at Work Regulations 1992.

Degree of risk

The legal issue was whether the same principles applied as when an employee is in the workplace, under the Workplace (Health, Safety and Welfare) Regulations 1992. The regulations, in a nutshell, allow judges to apply something near to the test of reasonable foreseeability, that is, “a consideration of the degree of risk; the nature and seriousness of the r risk if it materialised; the extent to which the risk was obvious and therefore avoidable with reasonable care; and also any past history of accidents.”

The council argued that there had not been any accidents of this kind before and by that test the gardening gloves that the complainant had been issued with appeared to be adequate. The garden was “not as bad as some” in Hull. If this interpretation of the law was right, then the council was in the clear.

However, the Protective Equipment Regulations 1992 say that: “Personal protective equipment shall not be suitable unless it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur and the period for which it is worn”; and “so far as practicable, it is effective to prevent or adequately control the risk or risks involved.”

It is in that context that an employer “shall ensure that an assessment is made to determine whether the personal protective equipment he intends will be provided is suitable.”

In addition: “The assessment required ...shall include v...an assessment of any risk or risks to health or safety which have not been avoided by other means... (and) the definition of the characteristics which personal protective equipment must have in order to be effective against the risks.”

So was the duty merely to take reasonable care or to issue equipment that would prevent injury? The lower courts had taken the view that there could not be an absolute duty to protect against injury; and since there had not been injuries before, the employer was entitled to take that into account in making a risk assessment. Risk, after all, is “consequence times likelihood.”

Lady Justice Smith was having none of it. If the gloves had been adequate, the risk assessment, and whether it had been properly conducted, would have been irrelevant.

Lesson learned

Effectiveness was at the heart of suitability. The gloves were not effective. It did not need hindsight to establish that they were not suitable. Cut resistant gloves were available. The gloves issued were not cut-resistant. Cuts might be anticipated by the nature of the work.

The lesson from this case is that where school or college staff are engaged in a physical task the essential nature of the task and all circumstances need to be taken into account.

The employer’s responsibility in this respect is more demanding than the general duty of care, say to children or visitors. And this will generally apply, not only in regard to direct employees, but also to those employed by contractors.

If there is a piece of equipment that will prevent injury, it should be provided even if a risk assessment shows there has been no case of such an accident before.

• Richard Bird is ASCL's legal consultant
  

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