The House of Lords has recently considered the definition of ‘Work Equipment’ with the result that the definition provided within the Provision and Use of Work Equipment Regulations 1998 (PUWER) has been widened and restated. This arguably gives greater scope to claimants’ solicitors to allege breach of PUWER and will require employers to take a broader view of what is covered by the Regulations.

Background  

Regulation 2(1) PUWER defines ‘Work Equipment’ as:  

any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not).  

Pursuant to 3(2) the requirements imposed by PUWER on an employer in respect of Work Equipment:  

shall apply to such equipment provided for use or used by an employee of his at work.  

This definition has been widely applied and objects ranging from lifts1 to folding tables2 to vans and roof racks3 have been held to be ‘work equipment’.  

Until recently the leading authority in this area - Hammond v Metropolitan Police Commissioner [2004] EWCA Civ 830 - suggested that this definition covered what might loosely be considered “tools of the trade” required by an employee to carry out his work. It did not include items provided by others on which an employee was working. So, applying this to the facts in Hammond, the wheel bolt on a van, not owned by the employer, being repaired by the claimant mechanic fell outside the definition of ‘work equipment’.  

Current position  

The House of Lords has now rejected the view in Hammond.

Spencer-Franks v Kellogg Brown & Root Ltd [2008] UKHL 46 (NB: a Scottish case) concerned a claim for personal injuries brought by a worker on an oil platform based in the North Sea. He was employed by Kellogg Brown and Root Ltd but was contracted to work on a platform operated by a third party. In 2003 Mr Spencer-Franks was asked to inspect and repair the closer on the door of the central control room. According to Mr Spencer- Franks the screw in the linkage arm was disengaged in circumstances in which it should not have been and he suffered injury as a result. He brought proceedings in Scotland claiming, inter alia, that that the door closer was ‘work equipment’. The Court of Session held that the door closer was not ‘work equipment’ and, even if it was, Mr Spencer-Franks was not ‘using it’ within the meaning of PUWER. The Court of Session accordingly dismissed Mr Spencer-Franks appeal. The matter was taken to the House of Lords where the appeal was allowed. In delivering the leading judgment Lord Hoffmann noted that:

“The domestic definition requires one to ascertain the purpose of the apparatus etc. What is it for? If it is for use at work, then it is work equipment”

Applying this to the issues in Spencer-Franks it was noted that everyone using the control room was using it for the purposes of their work. They used the door to enter or leave the control room. And in doing so, they used the closer. Its purpose was for use at work. Giving the definition its ordinary meaning, the closer was work equipment.  

Lord Hoffman queried if PUWER impliedly excluded apparatus which forms part of the premises upon which the work takes place. He suggested that in the case of ordinary work premises on land this might be a good argument. But in the present case - the equipment being attached to an offshore platform - it was not applicable.  

Essentially, Lord Hoffmann’s reasoning is twofold:  

  1. You first decide whether some apparatus is work equipment or not (ie is it machinery, appliance, apparatus, tool or installation for use at work ?) and, if so;  
  1.  You decide whether the regulations apply in respect of it (ie is it provided for use or used by an employee of his at work?)  

Other recent decisions  

It is interesting to note that the House of Lords did not refer to the case of Smith v Northampton County Council [2008]4 in their judgment given that this case was decided just five weeks before Spencer-Franks was heard.  

In Smith the claimant was employed by the defendant as a carer. She sustained injury when - whilst pushing a wheelchair at a client’s house - she slipped off the edge of a ramp which gave way.

At first instance the District Judge held that the ramp was work equipment for use at work and as such PUWER imposed strict liability on the defendant to maintain it. The defendant appealed on the basis that the ramp was not ‘work equipment’.  

The defendant’s appeal was allowed. Whilst the court emphasise that each case must turn on it’s own facts it did acknowledge that there must be some limitation on an employer’s strict liability. Questions based on the degree of control that the employer had over the work equipment and the territorial link between the work equipment and the workplace were raised. It was noted that whilst the test was relatively easy to apply to “tools of the trade” there must be different considerations for something which had been “installed” on a permanent or long-term basis.

Effect of the judgment in Spencer-Franks  

The effect of the judgment in Spencer-Franks is to expand the current law of what constitutes ‘work equipment’.  

Had Lord Hoffmann’s guidance been applied to Hammond then the outcome would have been quite different. If the van was “machinery, appliance [or] apparatus” (which Lord Hoffmann thought it was) and ‘for use at work’ (which Lord Hoffmann also thought it was) then it would have been considered ‘work equipment’.