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VDU work and the law

The legal framework

This chapter examines the legal framework that applies to the health and safety of VDU operators. It looks at the 1974 Health and Safety at Work Act (HSW Act) and relevant regulations made under that Act, namely the 1977 Safety Representatives and Safety Committees Regulations (SRSC Regulations) , and the new legislation which came into force on 1 January 1993 via Europe - the 1992 Management of Health and Safety at Work Regulations (MHSW Regulations), the 1992 Health and Safety (Display Screen Equipment) Regulations (DSE Regulations) and the 1992 Workplace (Health Safety and Welfare) Regulations.

It is important to understand how these various pieces of legislation actually fit together, and which duties employers have to meet in order to comply with all of them. When seeking to use the law to achieve good health and safety standards in their jobs, workers should recognise its limitations. The law is not health-based, rather it is based on the standards industry finds convenient to achieve in terms of financial outlay, time, and trouble.

Costs for industry or workers?

One of the most serious hazards of VDU work is RSI, and a battle is going on now in industry between the need to protect and rehabilitate workers, and employers' resistance to spending money on preventive measures and compensation for sufferers.

On a wider political scale, a similar tug of war is taking place. The EC has a social democratic agenda of reform, of which occupational health and safety is a key element, and therefore we are now seeing a huge volume of new health and safety legislation being transposed into UK law. However, the UK Government wants to cut costs for industry, including civil claims against insurance for breach of common law duty of care towards employees, criminal prosecutions of employers by Government enforcement authorities for breaches of statutory health and safety duties and indeed claims for state benefits for disability.

Who is responsible?

Health and safety legislation and provisions relating to responsibility and compensation for injury and disease apparently protect the worker and hold the employer to account. However in practice, the major responsibility for safety is on the worker and sanctions are very rarely applied to negligent employers. Instead, Government inspectors prefer to advise employers about good practice and trust that this will lead to compliance with law and guidance.

Blaming the victim for industrial injuries is nothing new, and is by no means confined to the UK. The most constructive approach, of course, is to welcome new legislation which clarifies and extends the duties on employers to provide a healthy working environment. The role of the trade unions in getting employers to comply with the law is crucial, and agreements can be negotiated that go beyond the basic legal requirements and look to best practice. Trade unionists can take full advantage of the opportunities offered by the new laws, and indeed the old ones, to improve working conditions. To what degree depends on organisational strength in the workplace.

Health and Safety at Work Act

The Act is very wide ranging and general, it is a criminal offence to breach duties imposed under it. It is an enabling piece of legislation which is supported by detailed provisions in the form of regulations (which have the full force of the law), Approved Codes of Practice and Guidance.

Employers' duties

HSW Act Section 2(1) introduces general legal duties on every employer:

In particular that duty extends, under Section 2(2), to:

'So far as is reasonably practicable'

This recurring phrase means employers can find a balance between the cost, time and trouble of making a job safe, and the likelihood of that job causing injury or illness. Employers must make all improvements to eliminate risks that they can foresee, unless the cost of doing so grossly outweighs that risk. This process is known as cost benefit analysis. Employers often dismiss improvements as being too expensive and unwarranted, without having carried out a proper analysis. In order to make this equation an honest one, quotes for work or equipment must be sought, and an estimation made of the benefits of improved working conditions in terms of reduced sickness absence, avoiding claims for compensation, and improved morale and productivity.

The law hinges firstly on a notional 'reasonable employer', secondly on the foreseeability of risks (in general terms, not the ability to predict a particular incident) according to the available knowledge from, for example, HSE guidance, manufacturer's or supplier's information, trade press, and views of staff and their representatives; and thirdly, the steps a reasonably prudent employer could be expected to take in the circumstances, bearing in mind the cost benefit analysis.

Employees' duties

HSW Act Section 7 states:

HSW Act duties are so wide ranging and general in nature as to be applicable in any workplace situation. For example, the HSW Act places a requirement on employers to minimise the risks of workers developing RSI. Equipment, safe systems of work, information, training and the working environment are all crucial factors in preventing RSI.

Assessing and reducing risks

The new regulations made under the HSW Act expand and spell out employers duties more clearly. Furthermore, they require employers to adopt modern risk management techniques. That is, to have a systematic approach to identifying risks; evaluating the nature and extent of any risk, and who is affected by it in the short term and the long term; to control the risk so as to prevent people being exposed to it; to provide information and training for workers regarding any risk and control measures in place; and to monitor the effectiveness of these arrangements.

The Management of Health and Safety at Work (MHSW) Regulations require a written assessment of risks to health and the control measures used to minimise them. The Display Screen Equipment (DSE) Regulations identify the principal risks associated with VDU work as musculoskeletal problems (RSI), visual fatigue and mental stress. The DSE Regulations require employers to assess VDU workstations for risks to users and to reduce those risks to the lowest extent reasonably practicable.

Safety Representatives and Safety Committees Regulations

The principal mechanism for consultation and representation is provided by the SRSC Regulations.

Appointing safety representatives

Where there is a recognised trade union, the members can elect a member to be their health and safety representative. The trade union has to notify the employer in writing of that person's appointment as a representative and the employer has to recognise their legal status, both in representing particular groups of workers and in raising general matters affecting the health and safety of the employees as a whole.

Safety representatives' rights

SRSC Regulation 4 details the functions of representatives:

Safety representatives have no more legal duties than any other employee. So if a representative accepts, agrees with or does not object to a course of action taken by the employer to deal with a hazard, they cannot be held responsible for any shortcomings of that course of action. Furthermore, there can be no proceedings taken against a safety representative for any act or omission under the functions they are appointed to carry out. Their functions are:

Employers must give representatives paid time off during working hours to allow them to perform these functions and to attend trade union training courses identified by their union. All representatives should ask their union to write to their employer requesting release to attend either the Trades Union Congress (TUC) ten day Stage One safety representative's course (run over ten weeks) or appropriate courses run by their own trade union. In the event of any problem with getting paid time off for further relevant training, the union will negotiate with the employer.

The Government has recently announced the abolition of the Trade Union Training and Education Grant. The grant is to be phased out over three years, and will make it harder for representatives to find local providers of courses.

Inspections

Regulation 5 covers representatives' rights to carry out planned inspections of the workplace at least every three months, and there are a variety of commonly occurring circumstances under which they can inspect at other times. For example, when there has been an accident or near miss, when new, relevant information is published by the HSE, or when there has been a substantial change in circumstances such as new working methods or equipment.

Employers must

Rights to information

Employers must make available to safety representatives any information they have relating to health and safety.

Safety committees

Regulation 9 states that where two or more safety representatives (not necessarily from the same trade union) ask the employer in writing to set up a joint management/trade union safety committee, they must do so within three months in consultation with the representatives, and must post up a notice where employees can easily read it stating who is on the committee and which workplaces it covers. The committee must be balanced, and management representatives must not outnumber trade union representatives.

New rights for representatives

In addition to setting out more specific and additional duties on employers, the MHSW Regulations also increase rights to consultation for safety representatives. Employers must now:

• the introduction of any measure at the workplace which may substantially affect health and safety
• the arrangements for appointing competent people to assist with health and safety and implementing procedures for serious and imminent risk (a new requirement on employers under the MHSW Regulations)
• any health and safety information the employer is required to provide;
• the planning and organisation of health and safety training and the health and safety implications of the introduction (or planning) of any new technology.

Furthermore, employers must provide facilities and assistance for all the safety representatives' functions, not just for their inspections as was previously the case.

Management of Health and Safety of Work (MHSW) Regulations

All duties under HSW Act 1974 still apply, so these new Regulations are additional. The MHSW Regulations are very much like HSW Act in that they are wide ranging and general, and therefore they overlap with other legislation. Where more specific regulations exist, compliance with those duties will normally be sufficient. However, where the MHSW Regulations duties go further than those of more specific legislation, extra measures will be required in order to comply.

For example, the DSE Regulations only require assessment of workstations for 'users' ie. those who habitually use VDUs as part of their normal work. However, under the MHSW Regulations, employers are required to assess not only the risks to employees but risks relating to non-employees arising out of, or in connection with, the conduct of their undertakings. MHSW assessment requirements are not limited to situations where particular levels of risk exist (eg. Noise Regulations), so if there is any degree of risk, employers have to conduct an assessment. Therefore, under the MHSW Regulations employers must assess all VDU workstations regardless of who may be using them.

Assessments

Every employer (including the self employed) must make:

The assessment includes not only directly employed workers but students, volunteers, the public, clients, visitors, temporary workers, sub contractors, homeworkers, cleaners, security staff etc.

Employers must review this assessment periodically and modify it if there are any significant changes in working practices or equipment, or if developments suggest the assessment may no longer be valid, or that it can be improved.

Employers are expected to take reasonable steps to familiarise themselves with the hazards and risks in their work, that is by reading HSE guidance, the trade press, manufacturers' or supplier' manuals etc., as well as by consulting employees and their trade union representatives and outside experts where necessary. Where the work activities change a lot, the risk assessment must concentrate on the broad range of risks that might arise. Work must be organised, and training given in such a way that the hazardous situations can be prevented and dealt with.

Employers must ensure that the significant hazards are identified, and that the actual working practices are addressed, not simply working methods that are supposed to be adopted according to the works manual. Pressures of time and volume of work, as well as productivity schemes create a climate where workers have to cut corners in order to deliver the work - for example by not taking screen breaks - because to do so would intensify the work rate at other times, or lengthen the working day, or simply because they need every available minute to meet the deadlines or to make a living wage.

Assessments must also identify those groups of workers who are particularly at risk, and the preventive and protective measures that are in place and that will have to be taken. The purpose of the assessment is to determine what "preventive and protective measures" should be taken to comply with all the relevant legislation. So in offices a suitable and sufficient assessment will mean referring to the DSE Regulations for more detailed and specific guidance on assessment and reduction of risks.

Preventive and protective measures should follow the hierarchy of control measures and the general principles laid out in the Approved Code of Practice to the MHSW Regulations:

• if possible, avoid a risk altogether
• combat risks at source
• wherever possible, adapt work to the individual
• take advantage of technological and technical progress
• risk prevention measures need to form part of a coherent policy and approach
• give priority to those measures which protect the whole workplace and all those who work there; ie. give collective protective measures priority over individual measures
• workers need to understand what they need to do
• the existence of an active health and safety culture needs to be assured

Safety policies, assessments, details of control measures and health and safety arrangements must be made available to staff. Safety representatives must be consulted and, although these are management duties, may very well want to be involved in carrying out assessments, since they coincide with representatives functions in carrying out inspections and monitoring management's compliance with relevant laws. Representatives can provide information and expertise from their trade union on best practice.

Health surveillance

RSI could fit into this category, although it is primarily aimed at early detection of industrial diseases caused by exposure to particular substances at work. Where there are diagnosed cases of RSI in a particular workplace, some system for early detection of symptoms and rehabilitation should be in place in the context of a preventive programme, and this regulation provides a useful argument to support the introduction of such a programme.

Some Occupational Health Services have a deservedly bad reputation and some guarantees must be agreed before such programmes can work. If employees fear that reporting RSI symptoms will lead to loss of status or the sack, they will be understandably reluctant to co-operate. An employment protection agreement needs to be drawn up, covering reporting and recording of symptoms, redeployment to non-screen work, time off, medical treatment, and no loss of status.

Workplace regulations

The Workplace Regulations came into force on 1 January 1993 for new workplaces, and all workplaces will have to comply with the Regulations by 1 January 1996. The Offices Shops and Railway Premises (OSRP) Act will continue to apply to existing workplaces until then. The Regulations are very similar to the OSRP Act, ie. the provisions are in the main non specific.

Standards for space, temperature, ventilation, cleanliness etc are required to be "suitable", "sufficient", "reasonable", "adequate" and so on. Many unions have negotiated agreements which give a more generous interpretation of the OSRP Act, for example, allowing workers more space than the legal requirement, and having a maximum as well as the legal minimum temperature.

The Display Screen Equipment (DSE) Regulations

Sub standards in the UK

These Regulations are accompanied by Guidance, not an Approved Code of Practice (ACoP). Guidance notes from the Health and Safety Executive give advice on requirements to be met and action to be taken by employers to comply with the law, they do not have the legal significance that an ACoP has in the event of a court case.

It is very common for the UK Government to take minimum requirements from European Directives and relegate them to guidance to UK regulations. The DSE Regulations were particularly controversial, and have been substantially watered down compared to the original EC directive, although not far enough for some. In May 1993 the Director General of the HSE, John Rimington, stated:

"The annexe to the Visual Display Unit Directive is quite literally incomprehensible and entirely written to serve the French system. We certainly will not and cannot enforce it." This is after the HSE's biggest ever consultation exercise, with over 65,000 copies of the consultation document distributed for comments from industry employers and trade unions. Furthermore the UK is leaving out a huge number of people who work with VDUs from the scope of the Regulations rather than covering all DSE workstations as required by the European Directive.

The truth is they never agreed there was any need for health and safety regulation of VDU work in the first place. Both Sir John Cullen of the Health and Safety Commission and Dr Tim Carter of the Employment Medical Advisory Service when launching the consultation process on the Regulations in 1992, described VDU work as a low risk activity. The Guidance to the DSE Regulations acknowledges that:

The CBI and the UK Government want to minimise the impact of the legislation, and are afraid of claims for compensation against employers for RSI, as well as seeking to cut the cost of providing ergonomically designed workstations, eye tests and "corrective appliances".

In 1993 the Government ordered two major, parallel reviews of health and safety legislation, with the clear intention of getting industry off the hook. John Major says he wants to "see a bonfire of unnecessary controls" and "a blitz on regulations". The Department of Trade and Industry has set up a "scrutiny team," which is to "cut a swathe through the jungle of regulations that encumber business". Mr Heseltine, who is heading the DTI taskforce, has singled out for particular attention the Framework Directive - in force as the MHSW Regulations, and the VDU Directive - The DSE Regulations. The HSE is conducting the second review. There is already quite a divergence between the requirements of the Regulations and good practice for avoiding RSI in the workplace. The gap could widen still further.

The DSE Regulations do offer opportunities to improve working conditions for those who use VDUs, but they will be have to be negotiated rather than given as rights. It is essential to have an agreed policy on VDU work. Many existing agreements are well in advance of anything mentioned in these Regulations.

What equipment is covered?

Display screen equipment includes conventional VDUs with cathode ray tube (CRT) display screens, and other display technology such as liquid crystal displays. Display screens mainly used to show line drawings, graphs, computer generated graphics etc. are covered, and so are microfiche systems. Lap-tops are covered only if they are "in prolonged use" ie. being used habitually by a "user." Display screen equipment whose main use is to show television pictures or films; in drivers' cabs; on board a means of transport; intended for use by the public (cash point machines etc); is not covered by the Regulations. Neither is equipment like window typewriters, cash registers or calculators.

Who is covered?

Users

Much of the controversy surrounding these Regulations centres on the fact that the full provisions apply only to a "user," defined as:

(whether they work at their own employer's workstation or at a workstation at home). The definition of habitual use in the guidance is given firstly as "more or less continuous use", and then where use is less frequent, a person is considered to be a user if most or all of the following criteria apply:

1. the individual depends on display screen equipment to carry out the job
2. they have no discretion as to the use of display screen equipment
3. they need significant training and/or particular skills to do the job
4. they normally use display screen equipment for continuous spells of an hour or more at a time
5. they use display screen equipment in this way more or less daily
6. there is a fast transfer of information between the user and the screen
7. a high level of concentration is required

Those who are classified as users are covered by all the Regulations.

Operators

The definition of an operator is:

Operators have to meet the same criteria as users, but they are not covered by the Regulations on daily work routine, eyes and eyesight tests and training. If you do not qualify as a user or operator, you are not covered by these Regulations. You are, however, covered by the HSW Act and by the MHSW Regulations (among other laws), so at least the law says your workstation must still be assessed and your job must not expose you to any risk (so far as is reasonably practicable).

The MHSW Regulations place a duty on employers to have arrangements for the effective planning, organisation, control, monitoring and review of preventive and protective measures that cover everyone whose health and safety may be affected by the work. Obviously, less enlightened employers will take advantage of the restrictive interpretation put on the Regulations. Some employers are using 50 per cent of working time spent at a VDU as the benchmark for applying the Regulations. This excludes many workers who should be covered.

The courts will finally decide who is, and who is not covered by the DSE Regulations. Enlightened employers will apply all the Regulations and more to those who work on VDUs.

Assessments

Regulation 2 a requires employers to carry out "a suitable and sufficient" analysis of every workstation which is used by either a user or an operator, for the purpose of assessing health and safety risks to those people. The assessment must be reviewed in the light of changes, or if there is reason to suspect it is no longer valid, for example if a worker develops RSI. The duty is to:

Remember, employers are obliged under the MHSW Regulations to assess all workstations for risks to health and safety in any event. The workstation is not just the VDU and accessories, but also the document holder, work chair, work desk, work surface and immediate work environment around the VDU, as described in the Schedule of minimum requirements for workstations. (See Chapter 9).

Where workstations are shared, the risks must be assessed for all those who use them. Risks to homeworkers must also be assessed, and the guidance suggests that an ergonomic checklist should be given to the homeworker to complete, and that the assessment should cover training and information needs of homeworkers.

The risk assessment must cover the hazards identified in official guidance ie. RSI, stress and visual difficulties, and estimate the possible consequences for workers. The guidance says that the assessment must be systematic, checking lighting and glare as well as poor furniture as a cause of uncomfortable working posture. It must be comprehensive, covering factors such as work organisation, job design, the workplace and the individual. The assessment should incorporate information provided by both the employer and the worker:

Ergonomic checklists and health surveys are good ways of obtaining that information.

However, ergonomics is only half the story - work routine (hours of work, organisation of work and breaks), and a short health questionnaire (see Chapter 5) should also be included in a good assessment.

Who should do the assessments?

The guidance is vague, indicating that certain personal qualities and a familiarity with the requirements of the Regulations should be sufficient. Health and safety officers and those appointed as competent persons to assist with health and safety under the MHSW Regulations would generally be appropriate. Line managers with suitable training could do it, or outside consultants might be needed.

Normally, assessments are carried out by in-house staff, although where an RSI problem already exists, outside help should be considered as in-house arrangements are obviously inadequate. Unions should be consulted on competence of those carrying out assessments, allowed to meet with them, be given opportunities to be involved and receive copies of all findings and reports.

The guidance makes it very clear that information from users is essential for a suitable assessment, it also says:

Safety representatives have the right to be involved in assessments, but it should be remembered that carrying out assessments is a management duty.

These Regulations constitute a substantial legislative change, and therefore, apart from their normal three-monthly inspections, safety representatives can carry out extra inspections on VDUs and interview their members to get their views.

The inspections can be done independently, in parallel with management assessments or as part of joint assessment procedures. Representatives should use questionnaires on the working environment, work equipment, the suitability of software, the work routine, and work-related ill health (See Chapter 9). This information will form the basis for representatives to negotiate VDU agreements which at least meet minimum requirements, but should also cover staffing levels, workloads, hours of work and breaks, eye tests and costs of glasses, transfer of pregnant workers and RSI sufferers, early reporting of symptoms and proper recording of incidents of ill health, job protection, medical advice and time off.

Reviewing assessments

Assessments must be reviewed in the light of:

• staff changes, such as a reduction in the number of staff, or staff turnover
• job design changes, such as the requirement to spend more time at the VDU, more speed or accuracy, new tasks
• workstation changes, such as introduction of new components, including lighting.

If anyone develops health problems, validity of the assessment is called into question.

Reducing the risks

The Guidance suggests remedial action for the three officially recognised hazards:

Requirements for Workstations

All workstations put into service after 1 January 1993 must meet the requirements of the Schedule to the DSE Regulations. Employers must ensure that existing workstations meet the requirements of the Schedule no later than 31 December 1996. If new display screen equipment is put into an existing workstation, the whole workstation must be regarded as new and has to comply with the Schedule immediately.

The guidance makes it clear that despite the four year lead-in period for older workstations, any problems identified require immediate action. Assessments are crucial, employees should insist that the minimum requirements for workstations are just that - essential basic standards that every workstation should meet in order to help prevent adverse health effects.

Users' daily work routine

This duty only applies to "users". However, other workers can point to the HSW Act Section 2 duty on employers to provide a safe system of work, and the MHSW Regulations which impose a duty on employers to have effective planning, organisation, control and monitoring and review of preventive and protective measures for everyone, regardless of "user" status or even "employee" status.

There is no time specified for frequency of breaks. Some employers will argue that breaks occur naturally. The Guidance does give some ground rules:

The central point is that workers need to have control over their own work, and to be able to reduce their workload on screen. Assessments should elicit information from workers on work routine and workload, this consultation will allow the employer to plan the work so deadlines and sudden influxes of work can be minimised.

Eyes and eyesight

This subject is given detailed attention in Chapter 2. Only "users" qualify; operators and others are not covered by Regulation 5. Users have to request an eye test before employers are obliged to provide one. Many trade unions have negotiated new technology agreements well before these Regulations were thought of, giving all those who work with VDUs the right to free eye tests. There are various agreements covering costs of "corrective appliances" (glasses or contact lenses); employers will sometimes pay for lenses if not for frames.

Provision of training

Regulation 6 of the DSE Regulations on training only applies to "users", however, HSW Act Section 2 and MHSW Regulation 11 cover everyone at work, so training in the possible hazards of VDU work and how to avoid them must be given.

Training should include:

• recognition of the symptoms of RSI
• the importance of early reporting of symptoms
• procedures for dealing with RSI: reporting, time off, redeployment, re-assessing workstations and job design, and treatment
• the importance of taking breaks to prevent the onset of fatigue
• clear explanations about good ergonomic practice
• how to adjust furniture
• how to arrange equipment to prevent awkward stretching
• how to adjust controls on the screen for contrast, brightness and colour
• how to adjust the screen for height, angle and viewing distance, and to avoid reflection and glare
• training on assessments and health and safety arrangements
• the right to eye tests and corrective appliances

Provision of information

Workers must be informed by employers about the content of the DSE Regulations. All workers are covered by the MHSW Regulations on information and training about hazards, control measures and health and safety arrangements.

Laws full of flaws?

Despite high expectations, the DSE Regulations offer disappointingly little for VDU workers. The interpretation of the new laws will depend on how vigorously they are enforced, and on the outcome of civil cases for compensation in respect of breach of duties resulting in pain, suffering and loss of earnings. Case law is extremely important in defining just how much employers are expected to do (or can get away with). It is not very satisfactory, since it all takes place after the damage is done and the legal system is not aimed at benefiting workers. Contrary to what some employers would have us believe, RSI sufferers do not welcome symptoms as a source of easy cash payouts.

Government inspectors lack the political will to enforce health and safety regulations in general, and the ones based on European directives in particular. Prosecutions of negligent employers are rare, they are only taken when there are gross breaches of legislation resulting in serious injury or death, although only a third of workplace deaths result in a criminal prosecution of the company concerned. The average fine is still only £1,000, hardly a very powerful deterrent.

Employers' negative perception of health and safety laws is led by government, describing laws as "burdens" and "restrictions" and "red tape", instead of presenting them as providing positive, necessary, protection for a civilised, advanced industrial nation. This laissez faire attitude towards industry currently allows employers to make workers so sick they can no longer do the job, and then to sack them as a result. This kind of management by pressure can only be countered by strong trade union organisation in the workplace.

Improving the working environment

The following checklist offers some ideas on action to improve the working environment. Details on improvements in workstation and job design are given in the final chapter of this book:

1. Get a representative

• Safety representatives in particular have a role to play in getting employers to adopt comprehensive safety strategies
• Elect at least one safety representative. If there is more than one, you can set up a safety committee with management to examine preventive and protective measures that should be taken.
• Make sure representatives get their entitlement to facilities under the SRSC Regulations and the new extension to these Regulations under the MHSW Regulations, so they get full information, involvement in assessments and can carry out inspections, and they are consulted by management on all matters relating to health, safety and welfare, and have the opportunity to represent members.

2. Assessments

• Have assessments already been carried out?
• Were workers and representatives involved?
• Are risks adequately assessed?
• Are preventive and protective measures in place?

3. Negotiate

• A new technology agreement that at least meets the minimum requirements of the law. Agreements should cover workstation ergonomics, staffing levels, hours and screen breaks, eye tests and glasses, work offscreen for pregnant workers and those with RSI symptoms.
• A security of employment agreement. Set up good RSI reporting systems; workers suffering symptoms should not be victimised, they should receive proper medical advice, redeployment to suitable alternative work or time off with full pay; there should be no pressure to return to work until fully fit and the right to return should be guaranteed.

4. Monitor

• Monitor management's compliance with the new Regulations. Raise any deficiency with them immediately in writing.
• If you have raised matters with employers and they have no intention of meeting their legal obligations, you can contact the Environmental Health Department of the local authority and seek advice from an inspector there, or contact the HSE for advice.