A recent case highlights the importance of language and understanding when undertaking workplace health and safety training. Ivor Long explains
The recent case of Vagharia v LPC in June has raised some interesting points on employers' duty to train employees on equipment and provide written instructions under the Provision and Use of Work Equipment Regulations 1998.
The claimant was employed as a trainee setter, having worked for the defendants for several years as a machine operator. The claimant was engaged to work on a machine that prints and embosses tissue paper. While attempting to feed a web of paper through a series of rollers, the claimant trapped his right hand and suffered serious injury.
The claimant was operating the machine using the 'jog' button with the assistance of another employee. The jog button allowed the rollers to turn a short distance for the purposes of maintenance and cleaning while the machine was otherwise isolated.
The defendant called evidence to state that the claimant had been fully trained in this procedure and knew it to be a one-man job. Had the claimant undertaken the task by himself it would not have been possible for the accident to occur.
The claimant relied on the vicarious liability of his colleague, who operated the jog button while his own hands were in a position where they could become trapped. The claimant further alleged that he had a poor grasp of English and that his mother tongue was the Indian language of Gujarati in common with much of the defendant's workforce. He admitted that he was aware of the safety procedures but claimed the training provided was inadequate given the potential serious risk of injury should his hands become trapped.
He argued that the training provided in English and verbally translated into Gujarati during safety lecture sessions was often inadequate and should have been carried out at the machine itself by way of practical demonstration and, in addition, should have been provided in writing in Gujarati.
Regulation 8(1) of PUWER states that: "Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment."
The defendant's English safety officer had some knowledge of Gujarati and argued that it was not practical to have "uncontrolled" written safe working procedures in Gujarati. He said in evidence that he knew many words in Gujarati that could mean many different things dependent upon how the word was phrased as well as context.
Since health and safety aspects of any working procedure were vital, he said he could not allow any possibility of misunderstanding from printed materials that were not clearly expressed in English. Furthermore, it was not practical to carry out training at the site of machines on the workshop floor because of noise, space and production issues.
The defendant argued that the person assisting the claimant should never have been allowed to do so by the claimant, who was the most senior employee. The evidence of the colleague, who was called in support of the claimant's case, was that they were told to assist in the jogging procedure by the claimant.
The judge held that the claimant was an experienced employee who had been fully and appropriately trained in all aspects of the paper feeding operation being performed at the time of the accident. He rejected the allegation that written safe working instructions in Gujarati were necessary.
He found that the claimant was fully aware that the procedure for the jogging operation should be carried out by one person alone to prevent the exact type of injury that the claimant suffered. This rule was emphatic, and the claimant had been reminded about it at the start of his shift. The judge further held that the claimant himself had elected to disregard the safe working procedure and instruct another junior employee to assist him in the jogging operation in flagrant disregard of the defendant's rules.
On the facts of this case, the judge was not persuaded that written safe working procedures should be translated into a language readily understood by employees.
With the recent enlargement of the European Economic Community and an even greater propensity for foreign nationals to be working within the UK, employers should welcome this decision. However, the wording of the PUWER states that clear and written instructions should be provided "where appropriate". No further guidance is provided by the regulations as to when it is appropriate.
It seems that liability is unlikely to be established under regulation 8(1), providing employers can show that appropriate training has been given and if they supply evidence as to why it would be impractical to provide those instructions written in a foreign language. It is, however, good practice for safe working procedures to be made available to all employees in English and in writing.
Employers should always maintain written records of all training provided to employees and be able to support those records with the details of each training session undertaken. Further, where there are issues over language and understanding, it is incumbent upon employers to make sure that every employee has properly understood this training and instruction, especially on matters of health and safety.
Ivor Long is a partner at law firm Weightmans.
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