"The video initially shows the employee picking up a carcass from the work bench beside her and placing it on the work bench in front of her. While the carcass is on the work bench in front of her, she manipulates the legs and wings of the carcass, and then applies elasticised string around the carcass before tossing it onto a moving conveyor belt. After the first four chicken carcasses, which appear to have been picked up by the employee from the work bench beside her, she begins to lift carcasses from shackles on a conveyor belt at approximately head height above the work bench and take each carcass in turn to manipulate and truss it on the work bench in front of her. From taking the carcass from the work bench or from the shackle, through the process of manipulation and to the point at which the trussed carcass is thrown onto the lower conveyor belt takes approximately 11 or 12 seconds per carcass. Of this time it appears that less than one second is taken in lifting the carcass from the shackle to the work bench, and only a fraction of a second is taken in throwing the trussed carcass onto the conveyor belt. While the carcass is being manipulated and trussed, the employee is working on it while the carcass is on the work bench, or picks it up for a moment to apply the trussing string around it before placing it back on the work bench".

"'load' includes any person and any animal"

and that

"'manual handling operations' means any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force".

Regulation 4 provides:

"(1) Each employer shall -

(a) so far as is reasonably practicable, avoid the need for his employees to

undertake any manual handling operations at work which involve a risk of their being injured; or

(b) where it is not reasonably practicable to avoid the need for his

employees to undertake any manual handling operations at work which involve a risk of their being injured; -

[take certain steps including the making of an assessment and the taking of steps to reduce the risk of injury]."

In making an assessment an employer is required to have regard to the factors specified in column 1 of Schedule 1 to the Regulations and to consider the questions specified in the corresponding entry in column 2 of that Schedule. Schedule 1 is in the following terms:

"In the present case, on the basis of the video evidence, it appears that the removal of a chicken carcass from the upper shackle to the work bench might be categorised as a manual handling operation, involving as it does both elements of transporting and supporting of a load. It may also be that the action of throwing the trussed carcass onto the lower conveyor belt can be categorised as transporting or supporting of a load by hand or by bodily force. However, there is no suggestion that the pursuer sustained any injury or exacerbation of symptoms as a result of either of these steps. Her complaint was focused on the repetitive movements of the wrist, hands and fingers in the manipulation of the chicken carcass, by tucking in the legs and wings and tying it with elasticated trussing string. While this manipulation was being performed, there was no transporting or supporting of a load".

"1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.

2. To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles.

3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work".

Article 5.1 imposed a duty on employers to ensure the safety and health of workers in every aspect related to the work. Article 6 provided:

"1. Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.

The employer shall be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations.

2. The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention:

(a) avoiding risks;

(b) evaluating the risks which cannot be avoided;

(c) combating the risks at source;

... ".

Article 16.1 provided that the Council should adopt individual Directives, inter alia, in the areas listed in the Annex. Among the areas so listed was "Handling of heavy loads involving risk of back injury". Article 16.3 provided that the Directive should apply in full to all the areas covered by the individual Directives, without prejudice to more stringent and/or specific provisions contained in these individual Directives.

"1. This Directive, which is the fourth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, lays down minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers.

2. The provisions of Directive 89/391/EEC shall be fully applicable to the whole sphere referred to in paragraph 1, without prejudice to more restrictive and/or specific provisions contained in this Directive."

Article 2 provided:

"For the purposes of this Directive, 'manual handling of loads' means any transporting or supporting of a load by one or more workers, including lifting, putting down, pushing, pulling, carrying or moving of a load which, by reason of its characteristics or of unfavourable ergonomics conditions, involves a risk particularly of back injury to workers".

Article 3 provided:

"1. The employer shall take appropriate organizational measures, or shall use the appropriate means, in particular mechanical equipment, in order to avoid the need for the manual handling of loads by workers.

2. Where the need for manual handling of loads by workers cannot be avoided, the employer shall take the appropriate organizational measures, use the appropriate means or provide workers with such means in order to reduce the risk involved in the manual handling of such loads, having regard to Annex 1".

Annex 1 provided the following reference factors:

"1. Characteristics of the load

The manual handling of a load may present a risk particularly of back injury if it is:

-too heavy or too large,

-unwieldy or difficult to grasp,

-unstable or has contents likely to shift,

-positioned in a manner requiring it to be held or manipulated at a distance from the trunk, or with a bending or twisting of the trunk,

-likely, because of its contours and/or consistency, to result in injury to workers, particularly in the event of a collision.

2. Physical effort required

A physical effort may present a risk particularly of back injury if it is:

-too strenuous,

-only achieved by a twisting movement of the trunk,

-likely to result in a sudden movement of the load,

-made with the body in an unstable posture.

3. Characteristics of the working environment

The characteristics of the work environment may increase a risk particularly of back injury if:

-there is not enough room, in particular vertically, to carry out the activity,

-the floor is uneven, thus presenting tripping hazards, or is slippery in relation to the worker's footwear,

-the place of work or the working environment prevents the handling of loads at a safe height or with good posture by the worker,

-there are variations in the level of the floor or the working surface, requiring the load to be manipulated on different levels,

-the floor or foot rest is unstable,

-the temperature, humidity or ventilation is unsuitable.

4. Requirements of the activity

The activity may present a risk particularly of back injury if it entails one or more of the following requirements:

-over-frequent or over-prolonged physical effort involving in particular the spine,

-an insufficient bodily rest or recovery period,

-excessive lifting, lowering or carrying distances,

-a rate of work imposed by a process which cannot be altered by the worker".

"any transporting or supporting of a load, by one or more workers, including lifting, putting down, pushing, pulling, carrying or moving of a load, which, by reason of its characteristics or of unfavourable ergonomic conditions, involves a risk particularly of back injury to workers".

It dispensed with the concept of "heavy" loads and, while identifying the risk of back injury as being of particular concern, did not limit the scope of the protection to operations which gave rise to the risk of that specific injury. It identified the type of load which would give rise to a "manual handling of loads" as being that which "by reason of its characteristics or unfavourable ergonomic conditions" involved the risk in question. The reference factors set out in Annex 1 to that Directive elaborated upon the characteristics of a load, or the unfavourable ergonomic conditions in relation to its transportation or support, which were regarded as relevant. All of these point to an activity which by its intrinsic characteristics or its positional or similar circumstances, gives rise to a risk of injury by reason of the transporting or supporting of a load as that term would be understood in ordinary parlance.

Act: Campbell, Q.C., Heaney; Thompsons

Alt: A. Smith, Q.C., Duncan; Simpson & Marwick

18 May 2007

Act: Campbell, Q.C., Heaney; Thompsons

Alt: A. Smith, Q.C., Duncan; Simpson & Marwick

18 May 2007

"alive and well". I agree that an interpretation of a statutory provision which produces absurd results is obviously to be avoided. It is in my view wholly improbable that the promulgator of the Regulations intended them to apply to virtually the universality of human activity in the workplace. Had that been the intention there would have been no need to employ the adjectival qualification of "manual handling" to the operations in Regulation 4 and hence no need for a definition of those words along the lines of that given in the Regulations. There would have been no call for a catalogue of factors as contained in Schedule 1 to the Regulations. In this context it is also appropriate to bear in mind the wider obligations imposed on employers in the over-arching Management of Health and Safety at Work Regulations 1999, implementing the Framework Directive. Further, while I fully recognise that in implementing the daughter Directive, Member States were not only free to impose higher standards of worker protection than required by the Directive, but were also enjoined not to reduce existing standards, it nonetheless remains the case, in my view, that the European legislative texts, which the domestic legislative body seeks to implement, are a factor which may be relevant to the legislative intent of the domestic legislative instrument. The provisions of those texts relevant to the present case do not, to my mind, give support for the submission of counsel for the reclaimer to the effect that virtually everything done in the workplace constitutes a manual handling operation. They are directed to a particular problem, namely the risk of injury while handling heavy loads and particularly the risk of back injury. I find it difficult to believe that the framer of the Regulations intended dramatically to expand the field of application of the Manual Handling Directive in its implementation in the United Kingdom. I am accordingly unable to accept the argument now advanced on behalf of the reclaimer to the effect that the definition of manual handling operations in the Regulations has the universal application for which her counsel contended.