The Employer's Duty to Control Substances Hazardous
to the Health of Employees.

The papers have recently reported a case involving an NHS nurse who was awarded £350,000 after developing a near fatal allergy to latex surgical gloves.

In this case, Ms Dugmore was an NHS nurse in a Swansea hospital.  During her time as a nurse, she developed an allergy to latex protein which was found in the surgical gloves that she used at work.  On one occasion, Ms Dugmore had a very serious reaction to the latex and was absent from work for three days.  Thereafter, the hospital provided Ms Dugmore with vinyl medical gloves which did not contain the allergen. 

Ms Dugmore then moved to another hospital which also supplied her with vinyl gloves.  However, due to her extreme sensitivity to the latex protein, she suffered an anaphylactic attack when she picked up an empty box that had previously contained latex gloves.  Ms Dugmore was unable to return to work as a nurse after that incident. 

During the initial trial, the Judge dismissed Ms Dugmore's claim on the grounds that it was not practicable to prevent all exposure to latex in the hospital environment.  The Judge further held that the provision of vinyl gloves was "adequate" control of the hazardous substance. 

Ms Dugmore appealed and the Court of Appeal disagreed with the initial trial judge's dismissal of the claim.  In fact, the Court of Appeal relied upon a previous decision by the court which stated that the duty imposed upon an employer must be considered in light of: 

"...the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know".

The Court of Appeal considered the research conducted on latex allergy and found that an employer ought to have been aware of this research and the potential implications of latex exposure.  The Court held that the primary duty of the employer is to prevent exposure and the secondary duty is of adequate control of the substance. 

The Court held that powdered latex gloves ought to have been replaced by vinyl ones, and it was for the hospital to prove that this was not reasonably practicable.  The Court stated that "an employer who fails to discover a risk or rates it so low that he takes no precautions against it would nevertheless be liable to the employee who suffers as a result".  The Court held that the first hospital was in breach of its duty to the nurse for failing to prevent exposure to latex or keep levels of exposure to as low as reasonably practicable.  However, the Court did not find the second hospital to be liable as the allergy had developed at her previous employer through persistent exposure to latex. 

The case is a reminder to employers of their wide duty to their employees where hazardous substances are concerned, and the risks to which they expose themselves if they fail to ensure that their employees are not protected from such substances.  Employers must remain vigilant to the latest research on hazardous substances which may be used in the course of business.  Liability may well be imposed on employers who do not actively consider whether substances may harm their employees.

For further information on the issues raised in this newsletter, please contact:
 
Chris Magrath         Tel: (020) 7317 6713 chris.magrath@magrath.co.uk;
Adele Martins         Tel: (020) 7317 6719 adele.martins@magrath.co.uk; 
David Buckle          Tel: (020) 7317 6787 david.buckle@magrath.co.uk;
Michael Sissons     Tel: (020) 7317 6793 michael.sissons@magrath.co.uk or
Kiran Daurka          Tel: (020) 7317 6783 kiran.daurka@magrath.co.uk.
 
Magrath LLP, Solicitors, 52-54 Maddox Street, London W1S 1PA
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