Hand-arm vibration syndrome – more costly prosecutions

This article was co-authored by Hazel Milner, Trainee Solicitor, Sheffield.

The focus of Health and Safety Executive (HSE) prosecutions has historically been on companies that have exposed their employees to safety risks, as opposed to vibration and other health related failings. However, in recent years the HSE has made a concerted effort to make workplaces healthier as well as safer. This has resulted, in particular, in an increase in enforcement action being taken by the HSE against companies failing to adequately manage the risks arising from vibration.

Background

Hand-arm vibration syndrome (HAVS) is a preventable condition which affects the nerves and blood vessels of the hand. The effects can include pain, tingling and numbness of the hands and fingers, and the inability to do fine work. In a workplace setting, HAVS is often caused by hand-held or hand-guided vibrating power tools such as grinders, chainsaws and hammer drills.

The Control of Vibration at Work Regulations 2005 (Vibration Regulations) require employers to eliminate or otherwise control the exposure of their employees to vibration. Employers are advised to assess the vibration risk to their employees, and to take action to reduce the vibration exposure that produces those risks. This includes ensuring that the daily exposure action and limit values set by the Vibration Regulations are not exceeded.

HAVS prosecutions

Since the introduction of the Vibration Regulations we have seen a spike in the number of prosecutions being commenced. Following the introduction of the Health and Safety Offences, Corporate Manslaughter and Hygiene Offences Definitive Guideline in February 2016, the level of fines for HAVS-related cases have also increased.

The first successful prosecution was in 2006 when a wholly owned subsidiary of Peugeot was fined £10,000, following a diagnosis of HAVS in an employee in 2001. Fast forward twelve years and more recent examples exemplify the significant fines now being applied.

In June 2018 Balfour Beatty Utility Solutions was fined £500,000 after the court was told that its employees were exposed to the risk of developing HAVS from 2002 to 2011, and that the company had failed to report a number of diagnosed cases under RIDDOR. The HSE considered this to be a particularly serious case because of the extent and duration of failures, resulting in persistent poor compliance.

In August 2018, Nordam Europe, a company which services and repairs aircraft components, were also fined £400,000 after one hundred of its employees developed HAVS over a period of twenty-two years. Employees used a range of hand-held vibrating tools including orbital sanders, rivet guns, grinders and drills and the HSE stated that this was a case of the company completely failing to grasp the importance of HAVS health surveillance.

Subsequently, in October 2018, British Airways Avionic Engineering was fined £80,000 for failing to adequately assess the risk of its employees being exposed to HAVS for eight years, having assessed this risk at only one of its sites.

Obstacles to mounting a successful defence

  • Difficulties in tracing documentary evidence of the safeguards taken, including exposure monitoring and training records.
  • Occupational health reports specifying the need to reduce exposure can be difficult to locate with the passage of time.
  • Changes in key personnel responsible for oversight of the company’s occupational health system or those managing the employees using vibrating tools, can contribute to difficulties in locating evidence of the steps taken to reduce risks.

In our experience, evidence of the existence of HAVS policies and procedures, vibration and tool usage records, and routine occupational health checks has enabled the successful defence of HSE prosecutions.

Supportive evidence of a vibration expert is also often necessary and on occasion an occupational health or medical expert may be required to determine actual diagnosis of HAVS or whether the employee has another medical condition which could explain their symptoms.

What does the future hold?

It is likely that the HSE will continue to focus on health related risks including vibration and that companies falling foul of the law (certainly those guilty of lengthy and/or repeated breaches) will face potentially significant fines. However, we don’t anticipate the recent spike in the number of prosecutions to continue. There is a definite sense that businesses are increasingly alive to the risks of vibration and are keeping better records to strengthen their position in the event of either criminal or civil proceedings.

Whilst there were over seven thousand HAVS claims reported between 2008 and 2017, the number of reported cases for the final year of that period was under three hundred. With less confirmed HAVS cases due to the safeguarding actions taken by companies, there will be fewer reports under RIDDOR and therefore potentially fewer HSE investigations which will ultimately result in prosecutions.

To safeguard against prosecution, employers must recognise the risks associated with hand-held vibrating tools and ensure that they take proactive action, including monitoring vibration exposure, consistent record-keeping, providing sufficient training, and engaging the provision of occupational health surveillance.

This article was co-authored by Hazel Milner, Trainee Solicitor, Sheffield.

Read other items in Health, Safety and Environment Brief - December 2018

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