Stark v The Post Office (Unreported Court of Appeal 28/02/2000)
The European Health and safety framework and so-called daughter Directives came into force in the United Kingdom in 1992 with the six pack of health and safety regulations.
Some eight years later the case law is beginning to emerge as cases make their way up the appeal courts. This month we report the first Court of Appeal judgment and a high court judgment on the regulations.
In this CWU backed case, Mr Stark, a postman, was injured at work when his cycle front brake snapped in two, the front wheel locked and Mr Stark was thrown over the handlebars. The bicycle was supplied by the Post Office.
The brake had snapped because of metal fatigue or manufacturing defect and the defect would not and could not have been discoverable on any routine or rigorous inspection. The court found the Post Office had done their best to maintain the bike and had done everything they could to check for faults.
The question for the court was whether the Post Office had breached their statutory duty under regulations 6 of the Provision and Use of Work Equipment Regulations 1992 that says that "Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair". Was that an absolute duty, or a duty just to take reasonable steps to keep the equipment in good order?
The Court said the duty was not breached as it required a reasonable level of maintenance. But the Court of Appeal have overturned the decision and ruled that the regulation imposes an absolute duty, and, since the bike broke, the employers must have been in breach. The Court had to interpret both European and UK law. Even though the Directive did not require an absolute duty, the Directive imposed minimum standards and specifically said that where domestic law provided for greater protection, the Directives did not seek to reduce that protection. Since the wording in the Regulation used words that in other UK health and safety law imposed an absolute duty, Regulation 6 could be interpreted in light of UK case law that where an employer "shall ensure", the duty imposed by the regulation is an absolute one. Parliament had written an absolute duty and it must be assumed that was intended. The employer was in breach and Mr Stark got his compensation.
This story was also published on our Cycle Accidents page.
Employer to foot privacy bill
Post Office v Footit [2000] IRLR 243
Mrs Footit is an environmental health officer who served an improvement notice on the Post Office under the Workplace (Health, Safety and Welfare) Regulations 1992 requiring them to provide a separate changing cubicle for postwomen in addition to the women's lavatory and unisex changing area. The women had to walk through the unisex changing room to access their toilet area, meaning that they often had to walk past male colleagues changing wet clothing. The Post Office appealed the decision, eventually reaching the High Court.
The regulation states that an employer must provide suitable and sufficient facilities for changing when an employee has to wear special clothing for the purpose of work and cannot be expected to change in another room, for reasons of health or propriety.
The Court held that the postal workers' uniform was special clothing within the meaning of the Regulations. The fact that most staff wore their uniform to and from work, did not matter. The tribunal was entitled to find that for reasons of propriety, the facilities currently provided were not suitable and sufficient for the purposes of the Regulation.
The concept of propriety is not just confined to gender separation and can include people of the same sex not having to undress in front of each other.