Suitability of Work Equipment - Regulation 5 PUWER 1992

Yorkshire Traction Company Limited v Searby Court of Appeal 19 December 2003 (Lords Justice Pill, Chadwick and May)

When is work equipment 'suitable' within the definition of the Provision and Use of Work Equipment Regulations 1998 (previously 1992)? Is a bus (work equipment) that didn't have a screen to protect drivers from the risk of assault by passengers 'unsuitable' with the result that the employers had failed in their duty under article 5.1 of the Framework Directive 89/391 'to ensure the safety and health of workers in every aspect related to the work'?

In the instant case, the claimant was a bus driver with the defendants.

The evidence at first instance showed that of a workforce of 600, eight had been assaulted in the year prior to his accident.

Some buses in other parts of the country had been fitted with screens and in some areas the workforce readily accepted the designs.

The judge, found that the risk of assault was sufficient to require some means of prevention, and the lack of such prevention meant that the bus was not 'suitable'.

The defendants argued that the workforce was not keen on screens and that in 1986 there had been a trial which was unsuccessful.

It was accepted in evidence that there was a gap between 1986 and 1998 in which little appears to have been done in investigating the problem.

Lord Justice Pill, giving the lead judgment in the Court of Appeal, found that the attitude of the workforce was 'a substantial factor' in considering liability.

At the request of the drivers, screens were actually removed from some buses that had been purchased with them already fitted.

The judges adopted the Appeal Court's approach to the definition of the word 'suitable' in regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 as considered in Marks & Spencers PLC v Palmer 2001 EWCA CIV.1528.

In that case, Lord Justice Waller stated that 'suitability seems on its face to involve a qualitative assessment'.

The court found that suitability depended very much on the degree of risk that was presented by an alleged defect.

Lord Justice Chadwick reverted to first principles in looking at the Work Equipment Directive and relied on article 3(2): 'Where it is not possible fully so to ensure that work equipment can be used by workers without risk of their safety or health, the employers shall take appropriate measures to minimise the risk' to support the view of the court that the degree of risk is an important factor to be considered.

In Searby, the court found that the failure to investigate alternative designs of screens in the 1986 to 1998 period was a failing, but to find against the defendants would be to require of them too high a standard of care.

If an employer is trying to 'minimise' the risk to the health and safety of bus drivers when there is evidence of a national problem arising from assaults on drivers by members of the public, can he properly argue that he has satisfied that requirement if screens that would have prevented the danger are not implemented? It appears from the judgment that the factor that undid the claimant in this case is the unfortunate attitude of other drivers to the imposition of screens as evidenced by their request for removal from buses fitted with them.

Therefore, the employers could show that they engaged in meaningful consultation with a powerful trade union - and at the time of the incident the employees who the equipment was designed to protect were undecided on its suitability.

By Simon Allen, Russell Jones & Walker, Sheffield