Spencer-Franks v Kellogg Brown and Root Limited and others (2008) UK HL46: Lords Hoffmann, Rodger, Carswell, Mance and Neuberger.

In the Health and Safety Commission’s Code of Practice to the Work Equipment Regulations of 1998, it is stated that ‘almost any equipment used at work’ is governed by the regulations. In Hammond v The Commissioner for the Metropolis and the Metropolitan Police Authority (2004) EWCA Civ 830, Lord Justice May hinted at a wish to limit the scope of the definition of work equipment to an employee’s ‘tools of the trade’ and not the materials with which or upon which he was working, even though this was wholly contrary to the definition contained within regulation 2(1), which includes ‘apparatus’ and ‘installations used at work’.

In the present case, the claimant was a mechanical technician employed by the first defendants who were contracted to supply workers to an oil rig in the North Sea, operated by the second defendants. On the day of his accident, he was tasked with repairing a closer to a door of the central control room. He released a screw on the linkage arm a half-turn to assess the level of tension. Unfortunately, though it should not have done so, this disengaged the screw and the arm was released and struck him in the face, knocking out four of his teeth.

At the Second Division of the Court of Session it was held that the door closer was not ‘work equipment’, nor was the claimant ‘using’ it within the terms of the 1998 regulations.

Their Lordships had, therefore, to assist in defining ‘work equipment’. While Lord Neuberger found that ‘interpreting the 1998 regulations is not an easy task’, Lord Hoffmann cut through the apparent complexity by asking in respect of any equipment: ‘What is it for? If it is for use at work, then it is work equipment.’ In this instance, use of the control room and the door in and out of it was for work purposes. Lord Rodger expanded this a little further by stating that we ought to look to whether the equipment performs a useful, practical function within and in relation to the purpose of the business; an approach that Lord Mance adopted. Lord Hoffmann accepted that there was a possible exclusion to his definition if the equipment formed part of the premises and thereby would fall to be assessed under the Workplace (Health, Safety and Welfare) Regulations 1992. Citing the Court of Appeal’s decision in PRP Architects v Reid (2004) EWCA Civ 1119 (in which a lift was classed as equipment), he found that much of the equipment on an oil platform is bolted or otherwise attached to the platform, but he did not feel that this prevented it from being work equipment if it is for use at work. Lord Rodger felt that it would not be wise to ‘draw too sharp a division between work equipment and fabric’, with Lord Carswell of the view that this was an issue that could be addressed by their Lordships in a future case.

Importantly, both Lords Hoffmann and Rodger rejected Lord Justice May’s limited approach to the definition of work equipment. Firstly, Lord Hoffmann stated that, once it has been found that something is accepted as work equipment, it is so irrespective of who is its user, for he stated that one must firstly decide whether apparatus is work equipment or not and then decide whether the regulations apply in respect of it. Lord Rodger agreed, indicating it would be difficult if items could slip in and out of being defined as work equipment depending on what was being done with them at any given moment. His Lordship helpfully provided examples of equipment ‘for use at work’ including clocks to let employees know the time, kettles to make tea or coffee and water coolers ‘at which they can drink and gossip’. While the last example is reminiscent of a 1960s public information film it is, nonetheless, helpful in exemplifying the width of definition of work equipment as perceived by their Lordships. It is evident that Lord Justice May’s ‘tools of the trade’ comment is wholly rejected.

This is no timid and ordinary decision from the House of Lords. Layered on top of their decision is the only other PUWER case before then (Robb v Salanis (M&I) Ltd (2006) UK HL56). One begins to detect a consistent body of authority promoting the primary role of these regulations as offering ‘broad protection’ to employees in the attempt to ‘prevent them being injured’ (Lord Rodger).

Simon Allen, Russell Jones & Walker, Yorkshire