Posted By Jack John, its only the guidance which refers to continuous spells of an hour or more. The Regs say ''user' means an employee who habitually uses display screen equipment as a significant part of his normal work'. When the revised guidance comes out at the end of the month it is likely to say 'normally use DSE for continuous or near-continuous spells of an hour or more at a time' which might help a bit. The change in the Regs does not mean that everyone will be determined as a 'user'. The change will mean all workstations used by employees must meet the 'minimum requirements' which is not the same thing.

Posted By john ridley True! True! but the ACOP is a standard which is likely to show that you are in compliance with the regulations, and to be honest, do you think the HSE are likely to take this to court and run the risk of losing? I don't think so! They are still hurting from the Herald of Free Enterprise and the subsequent legal and court costs it involved. The HSE resources are continually being cut back, so they are not likely to take on anyone who has a likely chance of success. I agree with you that the new regs are hardly likely to create a great shift in this perspective. Professionally I feel confident that I could recommend that by designing a policy that stipulates no continuous working at DSE for period of one hour or more could negate anyone from doing anything required by the Regs. However, it's good to get an input from my professional colleagues on not just something spouted out of a safety publication. Thanks Jack

Posted By Robert M Edwards The risk here is not just from the enforcing authorities who are subject to monetary fluctuations. The risk is also from employees' litigation which is on the increase. Whilst it is possible to insure against Health and Safety fines, the current market for employer's liability it becoming very volatile and the next move forward appears to be risk assessment for this.

Posted By Robert M Edwards The civil court does not deal with absolutes in the way you describe, if it did the stress cases would never have gone beyond the duty test. The test for duty will be widely used as in all employer/ employee negligence and the breach will be case dependant. As usual it will depend on the credibility of evidence. The 100% contributory negligence by an employee is rare still in civil cases and legal development in the ECJ suggest this will be more unlikely in the future as the ECJ want to bring employers across member states in line.

Posted By Robert M Edwards Sorry Geoff that should have read legal action not fines.

Posted By john ridley I accept your comment Rob but even if the duty test is conducted and confirmed, in stress cases the evidence must also show foreseeablilty (See judgement summary from LJ Hale in Hatton v Sutherland (2002) EWCA Civ 76). Foreseeability depends upon what the employers knows or ought reasonably to have know about the individual employee. After all this is exactly why the Walker case was won because the employer could not deny foreseability because of the first breakdown. Altough it is difficult to see how any employer can now deny foreseeability as a result of the availablity of information on stress. However, we are moving away from the DSE issue to stress; so to get back on track. I do agree totally with your comments about contributory negligence, but the point I am making is I don't think the case would ever get to court because of the risk of the authorities losing the case as a direct result of the wording in the ACoP. Equally, Insurance companies may be willing to settle out of Court but we would be able to show them that there is a full complete defence here and loss adjusters love a complete defence. Yes you might get improvement notices, which can obvioulsy be appealed against; and yes you might have safety reps jumping up and down, but the real focus of attention here is that I think there is a complete defence in that an employer puts a policy in place telling its employees not to work for continuous periods of one hour or more without a break and as a result the Reg's don't apply. Your point about the ECJ suggesting that there will be a level playing field for European employers is well made, but then again I attended a legal seminar in Lincoln's Inn some time ago and was told that corporate killing offence would be included in the Queens speech and we all now know it wasn't. Travelling on business myself in Europe I see the real application of H&S regulations by other European member states. Thanks though I appreciated your input.

Posted By Jack ACoP? I didn't know there was one.

Posted By Robert M Edwards The issue here John was not compulsory employers' liability but the issue of insurance for Health and safety breaches legal representation and other civil insurance matters where legal representation was needed. I remain unconvinced about the argument of an absolute defence. Insurance company settle on terms to suit both parties by a range of methods. We agree to differ no doubt!

Posted By john ridley I can see where you are coming from Rob and as you are undoubtedly aware, you cannot insure against criminal liability. With a strong legal defence the case is unlikely to be brought to the Court by the authorities nor in any civil proceeding. The “No win, no fee” legal representative providers would be reluctant to take up the banner if they are unlikely to get their wedge of the compensation cake - I did say I was an old cynic. I acknowledge your argument of an absolute defence but unfortunately you have failed to provide any legal reasoning behind your perspective. In my experience insurance company usually settle on terms that cost them the least amount of money – that why they have loss adjusters. Lets be clear here, I am not personally an advocate of this approach, all I am asking is, professionally we must provide our employers with all the options available to them and this is only one of them. I have seen too many professional H&S advisers/managers approaching issues only on moral grounds and not concentrating on financial and legal reasons. Perhaps it should be looked at as a typical NEBOSH question. Lets face it so far it has expanded the discussion and we can all learn off our colleagues, which is what this forum is supposed to be all about. Thanks for you response Rob. John

Posted By john ridley oops yes of course you are right Jack, thanks. I just went into automatic I'm afraid. I always thought that the DSE Regs received too much individual attention but you see them in every working environment so there is an increased perception of risk but not necessarily to the level of risk itself. I must acknowledge however, that people do suffer from ULD problems and that this can often lead to the end of thier repective career. Although Improvement Notices have been served, I bet no-one has challenged these notices. I would be interested to hear if anyone has and the result? I understand the civil side is a different matter and failure to carry out an assessment could be used as breach of statutory duty, but only if there is a breach of the statute, and that is the point of my question. If the Reg's only apply to users/operators, then unless an employee meets most or all of the criteria, then by definition there can be no breach. Or am I wrong????????????????????? Thanks for your input Jack, its appreciated. John

Posted By Jack John, for what its worth I think failure to carryout the workstation analysis could in itself be taken as breach of statutory duty if it could be evidenced that led to a failure to implement effective controls. Jim, I largely agree with you. The difference is that there are explicit Regs with regard to DSE and implicit Regs with regard to the rest. They could just as logically have come up with the Health and Safety (Chicken Plucking) Regulations as the DSE ones. I think it was an EC political decision which was not based on an assessment of risks. I guess it depends where you are sitting?

Posted By Brian Dawson John, I thought Jack addressed this in his first posting. The Regs define a user as an employee who habitually uses display screen equipment as a significant part of his normal work. Thats what a court would rely on. It would consider whether the employers decision about which employees were users was reasonable. It is HSE GUIDANCE which refers to continuous spells of an hour or more. Jack also said that when the revised guidance comes out at the end of the month it is likely to say 'normally use DSE for continuous OR NEAR-CONTINUOUS spells of an hour or more at a time'. If that is true then that might alleviate some of your concerns.

Posted By john ridley Damned good response Nick, but Regulation 22 of the management regulations says that a breach of the reg's cannot confer a right of action in any civil proceeding. I really doubt if the EHO or HSE would take anyone to court with the risk of losing and it's inherent costs and I think the risk is high here because of the draughting of the Regs. Please be assured that this is purely an academic argument and is not something that is happening in reality. Just an interesting point of debate.

Posted By Nick House John Damn! Forgot Reg 22!! Interesting debate though. There must be another way of bringing a successful action (I realise that this is only a hypothetical debate) against an employer in the case of a WRULD claim other than through the DSE regs though. That said, aren't we also in the business of protecting our employers from having such actions brought against them where possible? Therefore, for every possible action, we should also be looking towards defences. Have a good weekend all. Nick.

Posted By Ken Taylor In response to your question, if an employer asked me whether they could escape the duties of the DSE Regs by instructing limited time exposure I would advise against this action, in addition to the good 'health and safety' reasons, as being something of a risk due to not knowing how a court or insurer would interpret the actual Regulation and the practicality of ensuring compliance with the instruction by operatives and their supervisors.

Posted By john ridley Your are absolutley spot on Nick. I know most of us would morally go down the protect employees route but we also have to consider who pays our salary. We have to provide all the options available our employer. Consider an organisation who is almost bankrupt and is saving opeational costs wherever it can to survive and save jobs. If what I am suggesting is legally viable, then isn't it our professional duty to advise the employer accordingly?

Posted By john ridley Yes true Richard, but from the totally opposite perspective, how many people would actually suffer if this regime was implemented and adhered to? The costs saving on what many think as unnecessary regulation can be significant and could arguably be targetted to better use. We are all acutely aware of some of the injustices in today's modern legal system, the Stephen Lawrence, Damilola Taylor, Guildford four, Herald of Free Enterprise, Hillsborough etc being just some. There may be justice in heaven but we mere mortals only have the law to rely on. If the law is wrong, change it. The sole purpose of this thread is to allow our professional colleagues an insite and question the Reg's.