Abstract
In December 2005 the claimant was employed by the Trust to provide hairdressing services for psychiatric patients at various hospitals and units. When not engaged in hairdressing she worked at the hospital shop at Runwell.
From about 2008 she began to experience pain in her right thumb. In 2010 this reached such a level that she was taken off hairdressing duties and given housekeeping work. That also presented her with difficulties and in April 2011 she resigned.
In May 2012 she commenced proceedings, alleging that the pain and deterioration in her thumb were principally caused by the fact that, contrary to normal hairdressing practice, her work with patients frequently required her to cut hair which was extremely dirty and matted, thus imposing far more strain on her scissors thumb than cutting clean hair. This, she maintained, caused her injury and disability.
It was alleged that the Trust breached Regulation 3 of the Management of Health and Safety at Work Regulations 1999, through failure to carry out any or any proper risk assessment. The Trust disclosed 6 ‘General Workplace Risk Assessments’ dated April 2009, each of which dealt with one task of a kind likely to be carried out by a hairdresser at a psychiatric hospital. These were undertaken by Tina Mackenzie, the claimant’s predecessor as Trust hairdresser who commenced work at the hospital in 2004, before going on to manage the shop. The judge accepted that these risk assessments had been undertaken by Miss Mackenzie whilst she was still working as a hairdresser, and that they were originally in hand-written form. They were only typed up years later.
None of the risk assessments identified unwashed/matted hair as a problem presenting a health risk to the hairdresser or requiring precautions. Miss Mackenzie gave evidence to the effect that patients did frequently present with dirty hair which could be difficult to cut. She generally dealt with this problem by requiring the hair to be washed by the patient or by staff, and refusing to cut it otherwise.
The judge observed that it did not appear that the specific risk of hand injury through the cutting of unwashed/matted hair was, at the relevant time, a known and recognised one in the world of hairdressing, or indeed that of medicine, and this remained the position at the date of trial.
The judge considered that patients presenting for a cut with very dirty and/or matted hair was a real and relatively frequent problem, with one or more such cases likely to occur most weeks. Miss Mackenzie had dealt with the problem by generally refusing to cut such hair until it had been washed. The claimant kept a very detailed diary which appeared to indicate (a) that nursing staff on the wards frequently ignored her requests for hair to be washed; and (b) that to begin with she would frequently cut dirty hair, but that from 2008 onwards she often refused to do so until hair had been washed.
There was no persuasive evidence that the claimant was ever ordered by a manager to cut hair which was not in a suitable condition, or reprimanded or otherwise sanctioned for failure to do so. It was very difficult to reconcile the claimant’s suggestion that she had been compelled or pressurised into cutting dirty/matted hair with the entries in her diary demonstrating that she often refused to cut such hair.
Although the claimant presented at court as a quiet and gentle person, she was perfectly capable of asserting herself if she chose to do so. For example, in 2009 she made a formal complaint to her manager about the way in which staff on one particular ward treated their patients, and followed this up with a three page written statement.
The claimant’s complaints about dirty hair, and her refusals to cut it, were passed onto management via entries in timesheets.
Held: Ms Carrington was not put under direct or indirect pressure to cut unwashed or matted hair. It was left to her professional judgement whether or not to do so and if she refused, as she often did, no adverse consequences for her followed.
The claimant’s diaries, which formed the basis of timesheets, first recorded thumb pain in April 2008. In June that year there was a record of her telling the Facilities Office that she was resting her thumb after struggling with dirty greasy hair. In February 2009 she took a day off work on account of a painful hand.
The claimant’s case was that the Trust should positively have instructed her not to cut dirty or otherwise difficult hair. However, she had never been ordered to cut such hair. Rather, this was always left to her discretion. In those circumstances, such an instruction would have been unnecessary and added nothing to the existing regime. When the condition of her hand became more serious, the Trust behaved properly by referring her to Occupational Health. It also followed that department’s recommendation to transfer her to other duties.
There was a duty to review the risk assessments so as to deal expressly with the problem reported by the claimant, and that duty was not complied with. However, if such a review had been carried out, the judge was not persuaded that the result would have been anything more than a codification of existing good practice, namely that it was left to the claimant’s discretion as to whether or not, in any particular case, hair was in a fit state to be cut. Accordingly, although there had been a breach, this was merely of a technical nature and compliance would not materially have reduced the risk to the claimant.
Overall, the Trust was not in material breach of any duty owed to the claimant and therefore the claim failed.
David White (instructed by Bright & Sons) appeared for the claimant. Henry Charles (instructed by Clyde & Co) appeared for the Trust.
Comment
This was an extremely unusual claim and demonstrates that the NHS faces a wide range of potential liabilities owing to the breadth of activities it undertakes. Although the judge accepted that there had been a failure to review risk assessments, and also on the balance of probabilities that cutting dirty/matted hair had caused pre-existing asymptomatic osteoarthritis to produce pain and disability, nevertheless the employers were not liable for the claimant’s injuries because they allowed her a good deal of discretion in deciding whether or not to cut the hair of individual patients. In other words, the judge considered Ms Carrington to have been ‘largely the author or her own misfortunes by undertaking from time to time to cut hair which she knew or ought to have known was not fit to be cut, and thus exposing herself to unnecessary and avoidable hand strain’.