The recent Court of Appeal decision in Ghaith v Indesit (2012) EWCA 642 underscores quite how onerous the statutory obligations imposed upon employers by the six-pack of EC Regulations can be. The rather unedifying context was stock-taking of spare parts for white goods (washing machines drums etc) for the Defendant company. The claimant, a service engineer, spent all day lifting and moving heavy parts in and out of a van. He had 4 short breaks but was otherwise on his feet for seven and a half hours. Towards the end of the day, during a period of momentary inattention, he felt a sharp pain in his back whilst lifting and sustained personal injury.
The claim was made under the Manual Handling Operations Regulations 1992. The Defendant had carried out a risk assessment which addressed various aspects of the claimant's manual handling but did not consider the effect of repeated lifting over the course of a day. Nonetheless, the judge at first instance found that the claimant had been adequately trained and had failed to satisfy the court that anything which his employer might have done would have prevented his accident.
The Court of Appeal disagreed. Lord Justice Longmore, delivering the lead judgment, concluded that the risk assessment was neither suitable nor sufficient by virtue of the failure to address the length of time over which the manual handling took place. However, he went to consider the further obligation under Regulation 4(1)(b)(ii) to take "appropriate steps to reduce the risk to the lowest level reasonably practicable". He noted that the burden in this regard was 'firmly' on the employer and was 'inevitably difficult to discharge'. Whilst the employee could choose to suggest ways in which the risk might be reduced, he or she was not required to do so and it was, instead, for the employer to show that it had in fact taken appropriate steps in all the circumstances. Furthermore, given that the burden was on the employer, causation was "not a separate hurdle for the employee" to jump over. In 'rare' cases (the examples given are 'freak accidents') it might be possible for the employer to show that 'even if' it had taken all reasonably practicable steps to reduce the risk, the injury would still have occurred, but the onus of doing so was squarely with the employer and not on the employee.
This case should serve as something of a wake-up call to employers. The duties imposed by the 1992 Regulations, and others, are onerous and pervasive. Unless a coherent approach to the collation of evidence is taken at an early stage, with proper regard to the incidence of the burden of proof, it is likely that Defendants will face considerable difficulty persuading the Court that they have fully discharged their statutory obligations.