Philip Turton reviews a recent HSE prosecution arising from a failure properly to assess vibration exposure at work.

In May 2022, Westbridge Furniture Designs Limited were prosecuted by Her Majesty’s Health and Safety Executive for failure to undertake sufficient risk assessments in relation to their use of vibrating tools and failure to maintain adequate controls in the management of their vibration risk. The prosecution arose from a diagnosis of carpal tunnel syndrome in two of the company’s employees. A link to the Health and Safety Executive’s Press Release on the case can be found here.

There was a history to the prosecution. In 2016, following a Health and Safety Executive inspection, the company was deemed to have failed to properly assess levels of vibration exposure to its employees and warned it needed to take steps. On further investigation by the Health and Safety Executive in January 2020, the company remained in breach and did not have in place a proper system of assessment of levels of exposure, nor appropriate controls. Two employees, who had been diagnosed with carpal tunnel syndrome, had been expected to continue their normal work, the company failing to take into account the diagnosis and any particular vulnerability on the part of its employees. One employee suffered permanent nerve damage as a result, causing him to cease employment.

The company pleaded guilty before the Mold Magistrates of a breach of section 2(1) of the Health and Safety at Work etc. Act 1974. The Magistrates imposed a fine of £150,000 and ordered the company to pay costs of £14,033.50. The Health & Safety Inspector in charge of the case commented afterwards:

“This was a case of the company completely failing to grasp the importance of managing their employees’ exposure to vibration, whilst using hand-held tools. Employers should conduct a full assessment of the vibration magnitude and exposure duration, before reviewing whether employees are at risk. There is a simple online calculator to help them complete this process. Had this company followed the free guidance, they would not have exposed many employees to risk and possibly have prevented the ill health that has been suffered.”

The link between carpal tunnel syndrome and vibration is controversial, although it remains a prescribed disease (A12) for the purposes of Industrial Injuries Disablement Benefit. Whilst causation may be an issue in relation to civil claims, it did not matter for the purposes of the prosecution, where the company pleaded guilty and there seems to have been a proven deterioration in the condition which was linked to the work being performed. What mattered was the company’s failure to consider, assess or manage the clear risk which arose from the use of hand-held vibrating tools in the course of their operations.

Employers should note, firstly, the serious view taken by the Health and Safety Executive of the breach, secondly, the high level of fine, which would be met by the company, not being an insurable risk, and the fact that the risk arising from the use of hand-held vibratory tools arose in the woodworking industry, rather than the heavier sections of the construction industry. The duty to guard against injury caused by vibration exposure is not confined to any particular industry, but arises wherever employees use hand-held vibratory tools on either a regular or prolonged basis in the course of their employment. Use of such tools needs to be carefully monitored and, if exposure extends above the prescribed limits specified within the Control of Vibration at Work Regulations 2005, appropriately controlled.

The level of fine here was almost certainly influenced by the fact that the company had failed to act following the HSE’s intervention in 2016. Nonetheless, the sizeable sum which the company was ordered to pay is a warning to all companies whose employees use hand-held vibratory tools. If you fail to address the risk which arises from such work, you put yourself in danger of prosecution. Such prosecutions are difficult to defend and may lead to sizeable financial penalties.

Members of Ropewalk Chambers have extensive experience in handling and defending cases of vibration-induced injury on the part of employers, having acted in many of the leading cases in the area, and also represent companies faced with prosecutions similar to that suffered by Westbridge Furniture Designs Ltd.