Hi all I am looking for insight on this issue. An employee working at a SME injured his back while lifting a 44kg reel from the floor on to a machine. The existing risk assessment for this machine had identified the need for lifting equipment which had been installed several years previous and had worked well. The equipment eventually broke down and had been removed by the company three weeks prior to his injury and without any review of the risk assessment. The company were made aware during the three week period prior to his injury that the lifting operation was still being done by hand and without the aid of any lifting equipment. His annual manual handling training had only ever been covered by being issued with a booklet on the subject. No formal training or demo. His injury was reported and recorded in the company accident book. He sought medical attention and was given pain relief and advised a week off work would be beneficial. His employer does not provide sick pay so he stayed at work taking pain relief. His employer requested that he get a fit note. He gave his employer a fit note from his Doctor. One of the conditions on the note stated that he should avoid heavy/awkward lifting & repetitive bending. After finishing work and within an hour of handing in the fit note he had received a text message from his employer telling him that he would be working in different department the following day. The department he was put in the following day required him to carryout a great deal of manual handling, repetitive bending and heavy lifting. In my opinion there has been a major breach in the duty of care owed to the employee by the employer. Many thanks in advance for your thoughts

"The Company were made aware...." s.36 and s.37 of HASAWA '74 apply?

There are both civil and criminal matters associated with this scenario. First, I doubt if the regulator will be bothered to launch and investigation, more's the pity. From a civil perspective there is a weakness, in that the employee has not taken any time of work. Hence the major driver for compensation is loss of earnings and as far as I can see there is no loss. Interested to learn of the outcome.

On the basis of the events described, the employee could take out a civil case against the employer, and on the facts described the employer would have a difficult time defending such a claim, the best they could achieve would be some degree of contribution of the employee. However, what the practical outcome of this would be is another matter. The employee could claim a sum of damages for injury caused, although this is not likely to be much, but would be unable to claim under any other heads of loss, since he carried on working and has not presumably therefore lost any earnings. If he suffered any further injury as a result of being transferred to another department with more manual handling tasks, this could increase the injury damages achievable significantly. There are plenty of no win-no fee lawyers who would take on such a case, although the practical impact of suing employers he is still working for would inevitably be a worry for him. There might be a potential for a case of constructive dismissal if he had another job to leave for. These are the options that immediately suggest themselves to me.