Readers may be interested in a recent decision of the Court of Appeal
[Coxall v Goodyear Great Britain Ltd (EWCA 2002 Civ 1010)].   The case
itself is the subject of a short article in "Health & Safety Bulletin"
[December 2002, No. 314], from which I have taken the following extracts [I
hope Howard Fidderman won't mind]............

"an employer's failure to follow its doctor's adice to move - or ultimately
dismiss - an asthmatic employee from a job that was causing him harm was a
breach of duty."   However, the Appeal Court insists that its judgement
does not establish a new principle, and its ruling cannot always be
followed.

The case itself concerned an appeal by Goodyear Great Britain Ltd against
an award by Walsall County Court to Mr Coxall, who had contracted astma
through working as a paint operator.   Goodyear introduced a spray paint
that caused headaches and other symptoms to Coxall and some of his
colleagues.

Goodyear Ltd then provided rubber gloves, goggles and respirators which,
the trial judge ruled were all reasonably practicable steps necessary to
make the process safe.

Coxall, unknown to himself or to Goodyear - was predisposed to asthma and
was subsequently told by the works doctor that he should not work with the
paint.  A written memo from the doctor to Goodyear failed to reach Goodyear
management, and Coxall continued to work with the paint.

In May 1996 Coxall was diagnosed with occupational asthma caused by
irritant fumes consequent to his predisposition, and was certified unfit
for work.

There was no dispute that Goodyear had acted reasonably up to the point of
deemed notification by the doctor.  But ignoring such unequivocal medical
advice meant that Coxall was exposed to the fumes for a further 3 weeks.
The trial judge ruled that Goodyear was under an obligation of "last
resort" to remove Coxall from his job.

The company appealed,arguing that it is not for an employer to remove
empoyees from safe work [i.e. work that is safe for everyone except those
with an unknown vulnerability to do],let alone dismiss them, just because
the work does not suit them.   It was, Goodyear insisted,for each employee
to decide on the risk of continuing in the job.

In the Goodyear case the original trial judge said he was not compelled to
follow earlier authority [notably Withers v Perry Chain Co Ltd [1961 1 WLR
1314].   with Goodyear, the company doctor had advised moving the employee,
the H & S Manager had agreed, as line manager of Coxall would have had the
doctor's advice reached him.  The failure to follow that advice to move -
or to ultimately dismiss - Coxall was a breach of the employer's duty.

Goodyear contended that not following 'Withers' would place employers in an
impossible position - exposed to personal injury claims if they allow
employees to keep working, and to damages claims for unfair dismissal if
they do not.

The Court of Appeal said that conflicting principles could be resolved only
by reference to the facts of each case.  'Withers' had not been outdated,
but it could not be followed to the extent that employers would be immune
from liability.   The principal determinant of whether or not 'Withers'
applies must be the actual nature and extent of the known risk.  Goodyear
should have discussed with Coxall all available options once the works
doctor had made his view clear.   If he had still insisted on working, the
case would have been different.

NOTE:
In 'Withers' the employee returned to work even though she and her employer
knew that it might exacerbate her dermatitis.  The Court of Appeal said
then that the company had given her the best work it could, without which
she would not have worked at all. An employer was under no duty to refuse
to employ a willing worker because in its view it was not in that worker's
interests.  That would restrict individual freedom.  A company's duty was
restricted to taking all reasonable care for its employees: while a
considerate employer might try to offer alternative safe employment, it had
no obligation to do so.

If any readers are interested in this case, then they should read the full
judgement by obtaining a copy of the appropriate law report (EWCA 2002 Civ
1010) - see your local librarian for details of how to obtain a copy!


Happy New Year


Dennis M