As the number of cases won over exposure to latex increases, employers must ensure that they comply with Coshh regulations and manage their employees' risk, says Duncan Astill and Sarah Lamont
06 August 2004
An NHS worker has accepted a six-figure pay-out after suffering serious health problems caused by the latex gloves he had to wear at work. While this news story may prompt readers to recall the award to former nurse Alison Dugmore last month of £354,000, it was actually published on the BBC news website on 18 October 1999. Awards for latex sensitisation in a health setting is not in itself new. But the case of Dugmore v Swansea NHS Trust and another is of great importance to all employers.
The 1999 case was likely to have been settled on the basis that the employing NHS Trust was negligent in failing to limit the employee's exposure to latex. It was alleged that the trust failed to take account of complaints made and do anything to limit the exposure of the claimant. Other cases will no doubt have been settled on a similar basis. What makes the Dugmore case important is that the NHS Trust was not liable as a result of negligence. The claimant had first developed a sensitivity to latex in 1993, long before 1996 when the court felt that a prudent employer should have taken steps to limit exposure to latex. Instead, the defendant was found to be strictly liable on the basis of health and safety legislation.
Under section 7 (1) of the Control of Substances Hazardous to Health Regulations (Coshh), 'every employer shall ensure that the exposure of his employees to substances hazardous to heath is either prevented or, where this is not reasonable practicable, adequately controlled.'
The court held that the use of the words 'shall ensure' made this duty an absolute one that was not to be interpreted with reference to what was foreseeable or reasonable. It was accepted that it would not have been reasonably practicable to prevent exposure to latex but the court felt that it could and should have been adequately controlled by the simple matter of latex gloves being replaced with vinyl ones. These findings were reached on the back of the view that the purpose of the Coshh regulations is protective and preventative: they do not rely simply on criminal sanctions or civil liability after the event to induce good practice. So, any employer who has not adequately controlled the exposure of his employees to latex will be liable in civil proceedings for any personal injuries sustained. This will be so even if they had not been negligent.
But it is not just about latex. This ruling applies to any substance hazardous to health. The view of many commentators is that this decision has opened the floodgates to civil claims as employers will not be able to demonstrate that they adequately controlled a risk of which they were largely unaware.
Obviously it is too late to do anything about previous exposure but there is now no excuse for continuing to expose employees (or others) to a risk of harm from latex. Does your organisation comply with the latest Coshh regulations? There are certain key steps to compliance that should be taken that relate to latex. But the same principles apply for any substance hazardous to health.
There is a lot of freely-available material to help you understand your legal responsibilities and what steps need to be taken. The Health and Safety Executive has a whole section of its website dedicated to the Coshh regulations and latex allergies in particular.
The first step is to assess the risks posed by latex. This should be by way of generic risk assessment considering the risks to employees and patients created by products containing natural rubber latex. It is not just gloves that contain latex, but a whole manner of products including elasticated bandages and condoms. While latex is used extensively in the healthcare sector it is also used in a number of other business settings such as the food industry. It is essential therefore to consider all potential sources of exposure and consider the risks posed by each one. Staff representatives should be consulted during this stage and specialist advice may be necessary. The significant findings should be recorded.
The next question is to ask whether exposure can be prevented by substituting alternative substances or products for those containing latex. Only if it is not reasonably practicable to use an alternative product can continued exposure be justified. Several NHS trusts have implemented latex-free policies and in others latex gloves are only used by limited personnel, for example surgeons performing delicate surgical procedures where protection by latex gloves over alternatives is considered vital.
In a healthcare setting there is also a risk to patients which also needs to be considered. If latex products are being used, what steps are being taken to ensure that the patient is not susceptible to latex? Again it may be possible to use products that do not contain latex to largely prevent exposure. At the very least, some sort of screening needs to take place as part of the initial history taking procedure.
If exposure cannot be removed then it must be adequately controlled. Latex control measures would include education of staff, changes in work practices to reduce the length of time for which items such as gloves are worn and selecting the best quality (non-powdered) gloves with the lowest level of natural protein.
It is clear that where employees continue to be exposed to latex they are 'at risk' and should be subject to suitable health surveillance to ensure that evidence of sensitisation is picked up as early as possible. It is clear that repeated exposure does lead to a higher risk of developing sensitisation. Any positive diagnosis will need to be reported to the relevant enforcing authority.
As with any risk assessment the control measures in place should be reviewed regularly especially as the results of health surveillance become available.
Compliance with the regulations will ensure that the risk of harm and the risk of enforcement action is minimised. However, as a result of the Dugmore case any civil claim may be difficult to defend.
Duncan Astill and Sarah Lamont are partners at Bevan Ashford solicitors