North West H&S Co-ord Chairperson, Derek Maylor highlights Court of Appeal case in April which confirmed the principle that for compensation to be applicable to an employee on health and safety grounds, there has to have been an actual physical or mental health injury suffered by the said employee.

Furthermore, Employees must be able to prove that they have suffered actual harm as a result of breaches of health and safety law by their employer.

Derek writes:


The case involved five men who worked for Johnson Matthey chemical plants in Royston and in Enfield involved in the manufacturing process for catalytic converters.

This process exposed them to platinum salts because, as the employer later admitted; the factories were not cleaned thoroughly which was a breach of their duties under the relevant health and safety regulations.

However, there existed an agreement with the employees' trade union which meant that their overexposure to platinum salts was caught at an early stage through Johnson Matthey's regular patch testing programme.
Despite becoming sensitised to the substance, they had not yet developed a full-blown platinum salts allergy.

Apparently the only effect of the sensitisation on the employees was that they can't be exposed to the chemical, which in their  chemical plants can only occur in specific specialist processing environments, and Johnson Matthey's employment contracts specifically talk about the issue of platinum sensitivity and action to be taken in such circumstances - employees affected should either be deployed, or else dismissed with compensation.

Furthermore, those who could be exposed to platinum salts are paid  at a higher rate.

Of the five employees involved in this case, four of them could not be redeployed and received the contractual compensation payment, while the other remained employed on the standard salary.

Reporting on the case, Pinset Masons solicitors website, www.outlaw.com; explains the details of the ruling:

[The Court Of Appeal] upheld the High Court's original judgment against five individuals, who had sued employer Johnson Matthey Plc after they each became 'sensitised' to platinum salts because their workplace had not been properly cleaned. Platinum sensitisation is a symptomless condition that does not affect day to day activities; however each of the employees had to be removed from factory work to prevent the risk of further exposure.

Lord Justice Sales, giving the judgment of the court, agreed with the trial judge that the condition was not an "actionable injury" for which the individuals could claim damages. Instead, their claims were for "pure economic loss" and could only be successful if they had the right to make this sort of claim, he said.

"The financial loss arose because, to safeguard [the employees'] health and protect them from suffering the physical injury which would have arisen if they had become allergic to platinum, they were removed from their higher paying jobs working in an environment with platinum salts and would be prevented from working in such an environment elsewhere," the appeal court judge said in his judgment.

"If someone contracted the allergy while working (which it is agreed would amount to suffering a relevant physical injury) – for example, because there was a failure to carry out [certain screening tests agreed with a trade union] regularly - and then ceased work to prevent it getting worse, damages might then be recoverable in respect of their loss of earnings as the lost opportunity cost incurred by taking reasonable steps to mitigate their loss. But in my view one cannot extend this reasoning so as to apply it in the present case, where no physical injury has been suffered and none will be," he said.

A second claim, for breach of their contracts of employment, which had not been presented by the individuals at the original trial, was also rejected by the Court of Appeal. Johnson Matthey's duties to its employees were "focused on protection of the employee from physical injury, not protection from economic harm", and no such duties could or should be implied into the employment contract, the judge said.

"This judgment confirms the longstanding position that compensation for personal injury is predicated on actual harm, whether that is physical injury or harm to mental health," said health and safety law expert Kevin Bridges of Pinset Masons, the law firm behind Out-Law.com. "There is no automatic right to compensation for breach of duty by an employer in the absence of an actionable harm, even where that breach causes a loss of earnings."

Dealing with the issue of loss of earnings, the judge commented:

"The same is not the case, however, for the parallel criminal liability that can arise from an employer's breach of duty. Actual harm is not a requirement for there to be a prosecution. All that is required is a material risk of some harm, whether or not that harm actually manifests itself. If convicted, the employer can expect a hefty fine proportionate to its turnover."

Derek told Unionsafety that this case is one of major importance to all workers, irrespective of their working environment, be it in a factory, an office environment, or working from heights or down holes in the ground:

"The premise of all Health and Safety legislation abuses and subsequent compensation claims is that the worker must prove that they have been injured directly as a result of workplace processes, equipment used or their working environment.

The loss of earnings as a result of being deployed elsewhere; does not come into the case at all, especially when the contract of employment clearly states this action is to be implemented in the event of an adverse affect on the healthy and safety of the employee."

Source: Pinset Mason