David McIntosh: We all have a right to work in safety

Court actions for industrial disease and illness caused by breathing in excessive fumes and dust are no longer confined to heavy industry
Court actions for industrial disease and illness caused by breathing in excessive fumes and dust are no longer confined to heavy industry
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Court actions for industrial disease and illness arising from exposure to excessive dust and fumes in the workplace are normally associated with the “heavy” professions of the past – not with colleges and schools.

However, over the last few years, the number of cases of claims for exposure to excessive dust and fumes involving staff at educational institutions has increased rapidly.

David McIntosh is a Partner with Balfour+Manson

David McIntosh is a Partner with Balfour+Manson

Balfour+Manson has represented several successful claimants whose work in training young people in important trades has left them exposed to excessive dust. I settled four cases in 2017, with three more under investigation – and I know other law firms are dealing with similar cases in this area.

These claims raise fundamental questions about duty of care and about the funding of education and training in Scotland.

They also raise questions about the quality of accommodation being used. The majority of cases have related to older premises, where ventilation is definitely not of the quality one would expect in 2017. However, there have been a small number of cases which relate to new college campus buildings, which are clearly not fit for purpose for the modern era. One would certainly expect new-build accommodation to be fully compliant with modern building standards, which would include being well-ventilated, and designed with the health of both staff and students in mind.

Yet I have now seen numerous cases where occupational asthma and other respiratory illnesses have resulted from exposure to dust in the workplace. This is unacceptable for teachers and lecturers who are passing on vital trade skills to our young people. And what of those young people themselves? We have to be certain they are not being put into an environment where they are in danger of exposure to dust which could harm their health.

And it is not just the exposure in itself. My experience – and that of other law firms as well as Balfour+Manson who are working on similar cases – is that the follow-up when such cases are first reported is just not good enough.

There is a clear duty of care on the employer to ensure that any complaint of unsafe working conditions is investigated thoroughly and properly. Too often, I have encountered a real lack of care towards the complainant and an absence of support for their needs.

I understand that we are in straitened times when it comes to public finances, but surely anyone in this situation deserves care and support from their employer – especially when they are working in the public service. Too often the same story emerges – a complaint is reported to a line manager, but no further action is taken.

Where a complaint is listened to, I have found simplistic and inadequate solutions put forward. Instead of installing new extractor systems to improve ventilation or upgrading outdated systems, which can have significant financial implications, the suggestion is often much more basic – such as wearing a paper face mask.

This can only ever be a partial answer as an instructor has to be able to communicate during practical demonstrations and cannot keep a mask on at all times. Without doubt, the fundamental issue of working conditions must be addressed more thoroughly by employers.

My four successful claims of this nature have been at three different sites across Scotland. It is not a case of one or two buildings not being up to scratch; the similarly of the complaints about conditions and health problems suggest this is a systemic problem.

The cases have been successful due to good supportive medical evidence and colleagues who backed up the complainant’s insistence that issues were raised in the appropriate way, but not handled well by the employer.

There are other cases of a similar nature to be pursued in the future – including industrial deafness – and all are characterised by an apparent breach of both statutory regulations and common law duty of care.

Everyone has the right to work and be taught in a safe environment which will not affect their health. I understand the pressures on public funding – but what price do you put on your health?

David McIntosh is a Partner with Balfour+Manson