Repetitive strain injury - an area of exposure to claims by employees

Repetitive strain injury

Petra Cunningham looks at RSI as an area of exposure to claims by employees

The TUC recently estimated that repetitive strain injury ('RSI') affects 200,000 workers annually at a cost in excess of £1 billion in sick pay. A number of high profile personal injury claims by employees have highlighted the potential cost to employers of failing to assess and warn employees of the potential risks of prolonged periods of typing and other repetitive actions. Earlier this year, Midland Bank was ordered to pay £50,000 to 5 part-time employees who claimed they had developed RSI after working on keyboards for prolonged periods under pressure with no breaks. In contrast, the House of Lords in Pickford v ICI found that ICI were not negligent in failing to warn Ms Pickford, who was employed not only for typing but also for other secretarial duties, that she should break up her typing work by rotating it with her other duties in order to avoid the risk of contracting RSI.

Employers may also incur criminal liability under health and safety legislation for breach of statutory duty if they fail to carry out proper risk assessments or provide proper equipment.

As well as personal injury claims or liability under health and safety legislation, employers may face claims under the Disability Discrimination Act 1995 ('DDA'), or for unfair dismissal or breach of contract.

Disability Discrimination

Although there is, as yet, no reported case law on the point, an employee with RSI may come within the definition of 'disability' under the DDA. Unlike unfair dismissal, there is no qualifying period so all employees are protected, as well as job applicants.

Under the DDA disability is 'a physical or mental impairment which has a substantial and long term adverse effect on [the employee's] ability to carry out normal day-to-day activities'. A long term impairment is one lasting at least 12 months. It is not necessary to consider how the impairment was caused or whether it was caused by the work.

An impairment will affect an employee's ability to carry our normal day-to-day activities if it affects his or her manual dexterity. The Statutory Guidance, which must be taken into account by Employment Tribunals, explains that manual dexterity covers the ability to pick up or manipulate small objects or type on standard keyboards. A substantial adverse effect would include the ability to type only much more slowly than is normal for most people. However, inability to reach typing speeds standardised for secretarial work would not be sufficient on its own.

Employees are treated as being unable to carry out these activities where they have been medically advised to change, limit or refrain from the activity on account of an impairment, or where pain or fatigue is caused by performance of the activity.

If, as seems likely, an employee is able to establish that his RSI is a 'disability', he would be protected against discrimination, (i.e. being treated less favourably than others without disability or where the employer fails to make reasonable adjustments and, in either case, the employer's treatment is not justified).

Where any physical features of the workplace or any working arrangements cause substantial disadvantage to the disabled employee, the employer discriminates if he does not make Ôreasonable adjustments'. In relation to RSI, this could include allocating some of the employee's duties to another employee, allowing the employee to take additional breaks from normal duties, providing special or modified equipment or transferring the employee to another job. In determining whether a particular adjustment is reasonable, the effectiveness and practicability of the adjustment will be relevant, as well as the costs and the extent of disruption involved.

Less favourable treatment is only justified if the disabled employee cannot do the particular job and no reasonable adjustment which would enable the employee to do the job (or another vacant job) is available. Therefore, dismissal of an employee with RSI should only be considered where making adjustments, including changing the employee's equipment or duties and finding an alternative job, are genuinely not practicable options for the employer.

Compensation under the DDA is not capped and may include an amount for injury to feelings.

Unfair dismissal

If an employee with RSI is dismissed or resigns claiming constructive dismissal, the employer may incur further liability for unfair dismissal.

A dismissal which is due to the capability of an employee to perform his duties is a potentially Ôfair reason'. RSI may influence the capability of employees to perform their duties, particularly if such duties involve long periods of typing or repetitive motions on machinery. In cases where an employee's RSI is such that he cannot continue to perform his duties and the employer is aware of his condition, the main issue to be determined will be whether the employer acted reasonably in treating the incapability due to RSI as a sufficient reason to dismiss. Relevant considerations would include whether the employer consulted with the employee and medical advisers to determine the severity of the RSI and to establish whether any reasonable measures could be taken to assist the employee. An employer may therefore need to consider whether any alternative employment is available which the employee is capable of performing. The employer should take into account the nature and likely length of the condition and should discuss the position with the employee on an ongoing basis. It is sensible to obtain a medical report on the employee's condition. Sick pay entitlement and disability entitlements under company pension or permanent health insurance schemes may also be relevant.

Contractual claims

Where an employee feels forced to resign, he may have been constructively dismissed. The employee must show that the employer committed a fundamental breach of the contract and that this was the reason why he resigned. In the context of RSI, an employee would probably rely on the employer's breach of the implied duty to provide a healthy and safe working environment. Fundamental breach of this duty could include a situation where an employee notified the employer that he was suffering from RSI and the employer refused to take the claim seriously, insisting on the employee continuing to do the same job in the same manner.

Where the employee is entitled to a period of sick pay under his contract, it is possible that he may be entitled to bring a claim for breach of contract if dismissed before the exhaustion of that entitlement.

Finally, where the dismissal has the effect of preventing him/her from receiving disability benefits under a permanent health insurance or pension scheme, the employer may again be held to have acted in breach of contract. Damages would be equal to the value of the benefits which the insurance cover would have paid out. Clearly, this could amount to a considerable sum.

In view of this, in any case of RSI, it is important that, before making any decision about the employee's continued employment, an employer considers whether sick pay entitlement has been exhausted and whether any benefits available under any pension or PHI schemes would remain available after dismissal. Failure to take this step could prove expensive.

Avoiding liability

The best way to avoid liability to employees with RSI is prevention rather than cure, i.e. to ensure effective health and safety practices and monitoring. Once an employee raises a potential case of RSI, it is important to deal with that employee in a fair and reasonable way. If this approach is followed, it should be possible to avoid inadvertent breaches of contract and liability for unfair dismissal or unlawful discrimination.