HSE vs. Polyflor has an important implication for employers. The Court of
Appeal has ruled that the employer is expected to anticipate foolish actions
on the part of an employee and to guard against these. It does not imply
that the employer will be held responsible for such an act, but the employer
will have to show that they considered the potential for human error and
poor judgement and took all reasonable steps to prevent this from causing
harm. Unless they can demonstrate this to a court they may be held
responsible and subject to a criminal prosecution.
Consider now the issue of use of PPE such as gloves. Incorrect use of gloves
can cause significant risk of damage to health. Incorrect selection and use
of gloves is something that an employer now needs to consider, as it is
possible that this could lead to an employee suffering damage to health.
So as a minimum the employer must ensure that all employees have received
adequate training so that they understand the limitations of gloves, which
gloves to use, how frequently to change them, how to remove them, etc. I
would also argue that they need to have in place appropriate measures to
ensure that the use of gloves does not, in itself, introduce hazards such as
skin disease due to occlusion, particularly since if gloves have been worn
for an extended period the skin can be vulnerable for some time afterwards.
Furthermore, they should also have in place an effective skin health
surveillance system so that any effects from misuse are detected at an early
stage before serious damage to health can occur. This is also needed to
comply with the new guidance stated in the ACoP for COSHH, as this includes
among the situations where health surveillance is required the following
statement:
"where there is reliance on PPE, eg gloves or respirators, as an exposure
control measure; eg printers wearing gloves to protect against solvents used
during press cleaning, or paint sprayers using two-pack paints wearing
respirators to prevent asthma. Even with the closest supervision there is no
guarantee that PPE will be effective at all times" (Paragraph 237 of the
ACoP)
Employers, or those responsible for health and safety, might be well advised
to review their risk assessment and exposure management strategies and
whether these and their health surveillance systems would provide them with
an adequate defence were an employee to come to harm due to an unanticipated
act.
=====
Chris Packham
FRSPH, FIIRSM, FInstSMM, MCMI, MBICSc
EnviroDerm Services
Unit 10, Building 11, The Mews, Mitcheldean, GL17 0SN
Tel: 01386 832 311
Mobile: 07818 035 898
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