In this important case, the House of Lords considered the application of the Provision and Use of Work Equipment Regulations 1998 (“PUWER”). In particular the Lords considered the scope of employers' duties to maintain work equipment provided by third parties and used by their employees when working on third party premises.

Facts

Mrs Smith worked for the Council. One of her duties was to collect a wheelchair bound client from her home and take her to a day care centre. She was instructed to do this 3 times weekly. Access and egress to the house involved the use of a wheelchair ramp. The ramp had been fitted by the NHS approximately 10 years prior to the accident. The Council inspected the ramp, authorised its use, and instructed employees to carry out visual inspections on each visit to the premises. As a result of a defect which was not identified on inspection, the ramp crumbled as Mrs Smith used it. She was injured. She raised proceedings against the council and pleaded that the council were in breach of, inter alia, Regulation 5 of PUWER.

Held

The House of Lords held, by a 3 to 2 majority, that the Council was not responsible for the ramp. Although the ramp was “work equipment” within the terms of Regulation 2(1) of PUWER, it was held to be outside Regulation 3(2) as it was not part of the “undertaking or establishment” and had not been provided or adopted by the Council for use.

Discussion

PUWER was enacted to implement Council Directive 89/655/EEC of 30 November 1989. In order to assess whether the Regulations were applicable to this case, consideration was given as to whether the ramp was “work equipment” as defined by Regulation 2(1) and to whether it was “provided for use or used by an employee at work” under Regulation 3(2) . If applicable to the present case, the Regulations would, in turn, impose a strict duty on the employer to maintain the ramp under Regulation 5(1).

All 5 Lords of Appeal accepted that, if a literal approach to interpretation was adopted, the ramp was work equipment used by an employee at her work. It was noted that there is nothing in the definition that restricted the scope of Regulations to items that are located within the employers' premises or to things provided by that employer. It was therefore recognised that the definitions within Regulations 2(1) and 3(2) were, on a broad construction of the language, capable of extending to a range items which the peripatetic employee may use but of which the employer may often be unaware. It was argued that the imposition of a strict duty to maintain all species of equipment and apparatus used by an employee, wherever located, in the course of his duties could be too wide. This argument was tested against extreme examples of defects in such things as a lift or train at a railway station used by an employee in the course of his duties. In the circumstances, the Lords sought to interpret the Regulations with a view to establishing a test to limit the types of equipment and work situation to which the Regulations extend.

The majority of their Lordships looked to the Work Equipment Directive for guidance as to how to interpret the scope of Regulation 3(2). The Directive made reference to equipment "made available to workers in the undertaking". It was from this starting point that Lord Mance developed the leading judgement in the case. He opined that the relevant test should be "whether the equipment has been incorporated or adopted into the business or undertaking, whether as a result of being provided by the employer for use in it or as a result of being provided by anyone else….with the employers consent and endorsement”. This test was accepted by the majority.

Comment

It is clear that policy considerations were key to the decision of the majority. An alternative test, based on the concept of control contained within Regulation 3(3)(b), was also considered. As Regulation 3(3)(b) is intended to extend the application of the Regulations to non-employers, it was suggested by Lord Hope and Baroness Hale (dissenting) that employers must therefore owe those obligations at the very least in the same situations described by Regulation 3(3)(b)(i)-(iii). While this suggestion found some sympathy with the majority, it was ultimately discounted on the basis that it could potentially leave an employer liable in certain extreme factual examples contemplated by their Lordships. In particular, the majority objected to the concept, that employers with mere control "to any extent" over the person at work or the way in which the equipment is used, could face potential liability where they did not control the equipment in question to any extent. In such circumstances, it was argued that the employee could use a range of equipment without the employer’s knowledge and in circumstances where they were not in a position to effect repair. Again, examples such as an escalator used by an employee in a train station were used to counsel against the full scale adoption of the control test in Regulation 3(3)(b).

It could be argued however, that the majority were unduly weary of the control test. As stated by Baroness Hale, the concept of control over the person who uses the equipment and the way they use it “must import an element of choice. Regulation 3(3) extends liability only to the extent of the control in question”. Therefore, it could be said that under this interpretation of the scope of the control test, liability would only arise where there was a particular decision on the part of the employer to allow the use of a specific item of equipment.

If the concept of control had been adopted as the limiting factor in this case, it is likely that Mrs Smith would have been successful. While her employers arguably did not have control of the equipment in terms of Regulation 3(3)(b)(ii), they certainly could have provided her with an alternative for use in accessing the premises in question or alternatively they could have withdrawn her services. Consequently, they would have had control in terms of Regulation 3(3)(b)(ii) and (iii). Therefore, the majority decision appears to produce a result which allows employers to escape liability in circumstances where a non-employer would fall squarely within the wording of the Act.

It should be noted that this was a close decision. Lord Neuberger reached his decision “with considerable hesitation, and rather contrary to my initial impression”. Despite his decision to dismiss the appeal, Lord Neuberger hinted that the limiting factor developed by Lord Mance involved a “recasting of the legislative test”. Lord Mance was influenced by a desire avoid what he believed to be the “unjustified stringency and undesirable uncertainty” which could arise from an “over generous interpretation of the concept of control”. However, as suggested by Lord Hope, in setting a test which is not contained within the framework of the legislation, this could, in turn, create future problems of interpretation. In practice, Lord Mance’s test may be applied in a manner that produces results that he himself did not contemplate. Much may depend on the interpretation of the word “undertaking” on a case by case basis. Indeed, Lord Hope noted that, on applying the “undertaking” test, he would have allowed the appeal. It is arguable that where employers consent to and endorse the use of equipment on a regular basis, in the place where the equipment is situated, then they have incorporated it into their undertaking. It can be seen therefore, that both tests are capable of producing very similar results. In addition, the decision that the ramp was not part of the employer’s undertaking, could also be said to conflict with the decision in Spencer-Franks v Kellogg Brown and Root Ltd [2008], where Lord Rodger commented that the equipment of an undertaking is that which performs a "useful, practical function to the purposes of the undertaking". It could be argued that the ramp was not only useful, it was essential to the proper performance of Mrs Smith’s duties on behalf of the undertaking.

Conclusion

In conclusion, it remains to be seen in practice, whether or not, when applied to the particular facts of each case, Lord Mance’s “undertaking” test will be interpreted as being any more limiting than a test based on the concept of control which already exists within the Regulations in relation to the duties of non-employers.