ARTICLES
The Law in relation to Display Screen Equipment (VDUs)
By Caitriona Dowling and Sean Rafter in conjunction with
The main legislation providing for the health and safety of people in the workplace is the Safety, Health and Work Act 2005 (‘The Act’). The Act consolidates and updates the provisions of the Safety, Health and Welfare Act 1989. The Act applies to all employers, employees (including fixed-term and temporary employees) and self-employed people in the workplace. It sets out the rights and obligations of both employers and employees and provides for substantial fines and penalties for breaches of the health and safety legislation.
The (General Application) Regulations 2007
Almost all of the specific health and safety laws which apply generally to all employments are contained in the Safety, Health and Welfare at Work (General Application) Regulations 2007 (pdf) (‘The Regulations’) which came into effect on 1 November 2007.
The Regulations should be of particular interest to those employers who operate in an office environment. The provisions of Chapter 5, Part 2 of the Regulations relate to the health and safety requirements for employees who use display screen equipment (‘VDUs’) on a regular basis as part of their normal work.
As per this legislation employers are now required to:
- (i) evaluate health and safety at the workstations of their employees with particular reference to eyesight, physical difficulties and mental stress
- (ii) where any risks are identified, appropriate steps must be taken to control such risks
- (iii) the analysis of the workstation must be conducted by a competent person, with the necessary skills, training and experience
- (iv) the analysis must also take account of the minimum requirements in Schedule 4 of the General Application Regulations.
In general, these regulations provide that employees:
- (i) are entitled to have their workstation assessed in line with the requirements set out in the legislation
- (ii) must be trained in the use of their workstation and be given information about health and safety factors
- (iii) must also have periodic breaks or changes of routine, away from VDUs
- (iv) must be informed by their employer that they are entitled to an appropriate eye and eyesight test before working with VDUs and at regular intervals. They are entitled to spectacles to be provided, at no cost to the employees, for working at a display screen.
The Health and Safety Authority (‘The HSA’) has also published a list of frequently asked questions about display screen equipment (VDUs).
Upper limb pain and discomfort (WRULDS)
A range of effects on the arm, hand and shoulder areas linked to work activities are now described as work-related upper limb disorders (WRULDS). These range from temporary fatigue or soreness in the limbs, to cramp and ongoing pain in the muscles or nerves.
The HSA states that problems can be avoided by good workplace design and good working practices. Prevention is easier if action is taken early through effective analysis of a workstation, having regard to the minimum requirements in Schedule 4 to the Regulations.
The onset of fatigue and stress can be minimised by careful design, selection and location of VDUs, good design of the workstation, its environment and the task involved as well as training, consultation and involvement of the employee.
The Employers’ Duties also include compliance with the minimum requirements for all VDUs. For example:
- (i) The characters on the screen shall be well defined and clearly formed, of adequate size and with adequate spacing between the characters and lines
- (ii) The keyboard shall have a matt surface to avoid reflective glare
- (iii) The work chair shall be stable and allow the user easy freedom of movement and a comfortable position
Actions and Damages
Under the Health and Safety legislation if an employee has suffered an injury at work, they cannot seek compensation from their employer but they may make a personal injury claim through InjuriesBoard.ie.
InjuriesBoard.ie is an independent statutory body which gives an independent assessment of personal injury claims for compensation following an accident. It will only give an assessment of compensation where the person responsible is not seeking a decision on liability, or, in other words, where legal issues are not disputed. All claims involving workplace accidents (employer liability cases) must be submitted to InjuriesBoard.ie before starting legal proceedings. All personal injury claims (excluding medical negligence) must also be submitted to InjuriesBoard.ie. It assesses compensation quickly but does not award costs for or against either party.
The employer or the employee may reject the assessment of the Board who will then issue that party with an authorisation allowing them to make a claim through the Civil Courts.
The Annual Report for 2008 from InjuriesBoard.ie states that the total value of assessments issued last year was €217million of which €131million, or 60% were accepted. In 2008, as in previous years, the bulk of the claims came from motor claims (72%); with 17% dealing with public liability claims and 11% of the claims dealt with by the Board were related to Employer Liability.
The average time it took the InjuriesBoard.ie to deal with a claim was seven months, a slight reduction on the 2007 figures. The average ‘delivery cost’ of each claim was €1,810 which gave an overall saving of €50.2 million on accepted awards. Prior to the establishment of the InjuriesBoard.ie, cases took an average of 36 months to resolve through the civil courts.
The number of awards under €38,000 increased from 28% to 35%, whereas the number of awards over €38,000 decreased by 7%. Therefore 65% of all claims had a value in excess of €38,000. The awards ranged from the lowest claim of €550 to the highest at €582,932.
Of all the awards made, 53% were between €10,000 and €20,000 and 21% were between €20,000 and €30,000. Interestingly only 1.4% of the awards exceed €100,000.
Consequences of non-compliance
The HSA has the power to impose various fines and penalties for violations of the legislation. These include a possible fine up to €3,000 and/or up to six months imprisonment on summary conviction. The standard, which is to be applied to employers, is to be compliant with the Regulations ‘in so far as is reasonably practicable’. Although this is quite a high bar for employers to reach, this should not pose a problem for those who are already in compliance with the previous legislation.
Under Section 27 of the 2005 Safety, Health and Welfare at Work Act, a worker who feels penalised as a result of having raised a health and safety issue at work can take a case to the Rights Commissioner, which can then be appealed to the Labour Court.
Actions taken by Inspectors
The Safety, Health and Welfare at Work Act 2005 allows the HSA to take actions where statutory contraventions are observed or where there is a risk of serious personal injury. These actions include:
- The issuing of an Improvement Direction in relation to activities to which the Inspector considers may involve risk to safety or health of persons. An employer is required to respond with an Improvement Plan
- The issuing of an Improvement Notice stating the Inspectors’ opinion that a duty holder has contravened a provision of an Act or Regulation, and requiring that the contravention be addressed within a certain time period of not less than 14 days
- The issuing of a Prohibition Notice where an Inspector is of the opinion that an activity is likely to involve a risk of serious personal injury to any person. This notice takes effect immediately from when the person, on whom the notice is served, receives the notice
- The issuing of an Information Notice requiring a person to present to the HSA any information specified by the notice
- The taking of summary proceedings in the District Court in relation to an offence under any of the relevant statutory provisions.
Recent Case Law
In the recent case of Fifield v Denton Hall Legal Services, a legal secretary who had developed considerable pain in her wrists in the course of her work, successfully held her employer liable for the injuries she had suffered. The court held that the employer had failed in his statutory duty to ensure the health and safety of their employees by carrying out regular assessments of workstations and providing adequate training in the use of VDUs. The secretary was awarded over £150,000 of which half of the sum was for future earnings.
In another decision the UK Court of Appeal has recently held in the case of Latona Allison v London Underground Ltd (2008) that risk assessments are meant to be an exercise by which an employer examines and evaluates all the risks entailed in its operations and takes steps to remove or minimise those risks.
Delivering judgment in a case taken by an underground train driver, who developed tenosynovitas due to the strain caused by holding a traction brake controller, Lady Justice Smith said risk assessments ‘should be a blueprint for action’. This is regarded as a significant judgment as the judge highlighted the need for employers to take the advice of experts when carrying out risk assessments.
The UK equivalent of Ireland’s Chapter 5 Part 2 of the General Application Regulations 2007 is Regulation 9 of the Management of Health and Safety at Work Regulations 1999. This provides that every employer shall assess the risks to which employees are exposed for the purposes of identifying measures to comply with the requirements of statutory provisions. It had been argued that Ms Allison would not have developed tenosynovitas if she had been trained in the proper use of the brake handle.
Lady Justice Smith observed that the right approach should be to examine the risk assessment to determine if it had been sufficient and suitable. This would then help in the decision as to deciding whether or not the training had been adequate. In this particular case, she held that ‘a proper assessment of the risks of developing a static upper limb disorder from the prolonged use of a traction brake controller was likely to be beyond the capabilities of anybody other than an ergonomist’.
Ergonomics first came to the attention of the professional sector as a creative way of increasing productivity and employee efficiency. Medical research also began to link certain musculoskeletal disorders; work related upper limb disorders and sight problems to certain common work practices in the average workplace such as corporal tunnel syndrome which comes from the incorrect use of the keyboard. Ergonomics in the workplace has thus become an issue related to the safety of the employee, as well as a profit-affecting variant.
An ergonomically adjusted workplace leads to higher levels of efficiency amongst employees. Furthermore as the average age of the workforce increases in Ireland, the importance of avoiding workplace injuries leading to short term and long-term disabilities will become more important.
The Central Statistical Office of Ireland confirms that at least 71,400 employees suffered a non-fatal injury at work in 2006 and muscle strain accounted for 55% of these injuries. Injuries of this nature will both increase the rate of absenteeism in the workplace and the possibility of a rise in claims against employers in the future.
Recent case law and various reports in both the UK and Ireland have told us the following:
- (i) According to a report by Microsoft, Repetitive Strain Injury (RSI) costs UK businesses more than £300 million every year. The report also stated that more than 370,000 people in the UK are affected by RSI.
- (ii) The CSO National Statistics in 2006/2007 show that the most injuries in the workplace occur in two parts of the body. They are:
- Back - 22.9%
- Fingers - 11.7% - (iii) The same report also gives the top five Occupational Injury Benefit claims and interestingly the top two relate to VDUs. These are:
- Back/neck/rib/disc – 3,940 claims
- Hand/finger/wrist – 1,627 claims - (iv) According to the CSO, 980,200 workdays were lost in 2006 because of work related illnesses.
- (v) Musculoskeletal disorders have been found to arise from the following work-related tasks:
- Lifting/carting/pushing/pulling – 33%
- Materials manipulation – 31%
- Keyboard work – 19%
The HSA announced earlier this year during the launch of their ‘Programme of Work 2009’ that they are planning on conducting 200 inspections in the finance and insurance sector during 2009. The focus will be on VDU assessments, stress, slips/trips/falls and having in place anti-bullying policies in line with the Code of Practice on Prevention of Bullying in the Workplace.
Section 64 of the Safety, Health and Welfare at Work Act 2005 gives specific powers to Inspectors and these are dealt with earlier in the article.