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Issue 27 (October 1998)

Contents

Identifying the transfer
Time limits in equality cases
Employment Rights (Dispute Resolution) Act 1998
Gays abandoned: High Court u-turn on Royal navy discrimination
Setback for redundancy rights
RSI - dead or alive?
Leaving employment - reason for giving resignation  

RSI - dead or alive?

RSI court cases are like buses, there either isn't one for ages or they arrive in a bunch. Recently there have been significant decisions from a County Court Judge in a test case involving Midland Bank workers, the High Court in a case brought by journalists against the Financial Times (FT) and the House of Lords delivered judgment in a case involving a secretary.

To understand the significance of the recent events, it is necessary to understand some of the background to the rows that surround RSI. The crucial issue has been the distinction between "pathological" RSI conditions and "diffuse" RSI conditions.

Pathological RSI conditions are those where the sufferer has physical evidence of their complaints: on examination a doctor can find lumps, bumps and swellings.

Diffuse RSI conditions are where the individual complains of pain and yet, on examination by a doctor, nothing physical can be found to be wrong. It is this second condition that is the most controversial - it is diffuse RSI that the insurance companies and employers would have everybody believe is purely psychological, "all in the mind", and nothing to do with work.

In general, assuming the facts are there, pathological RSI cases are succeeding. It is diffuse RSI that has been the problem.

In any case, the facts that a lawyer will look for include:

how quickly the condition developed
the age of the individual
the system of work eg how fast did they work?
were there breaks and warnings?
was there a bonus system or targets?
were there complaints?
did anyone else also suffer?

The history of diffuse RSI legal action suggests that Judges are, naturally, suspicious of those who claim injury but have no physical proof.

The first glimmer of hope for diffuse RSI suffers came in an academic study of keyboard workers which found evidence of tissue damage through the use of vibrometers. This though was a very small study and two more years research is needed before any firm conclusions - that could possibly be relied on in a Court case - can be drawn.

In the case that reached the House of Lords, Ms Pickford sued her employers, ICI, having developed writer's cramp which the DSS have as prescribed disease A4. Whilst the DSS has accepted writer's cramp as a prescribed disease, Doctors argue about whether it is caused by trauma or physical injury or whether it is psychogenic - all in the mind.

In Ms Pickford's case, the trial Judge who first heard the case was faced by her doctors arguing that the condition was caused by long periods of typing without any break or rest. On the other side the foremost RSI sceptic, Lucinda Lucire, argued that Ms Pickford's complaints were an indication of 'conversion hysteria' and her condition was all in the mind. The first Judge didn't find that the condition was all in the mind but he then failed to go on to find that it was organic/genuine.

It was the first Judge's failure in the Pickford case to effectively decide anything about the medical evidence that were the grounds for the appeal to the Court of Appeal (and ultimately got it into the House of Lords).

In the Court of Appeal, two out of three Judges were sympathetic towards Ms Pickford with the leading Judge commenting, in considering the dispute on the lack of a physical diagnosis in the case that:

"Even as late as the 1970s .. there was a tendency among some medical men to say that if they could not find any organic evidence of the patient's complaints of pain, it must be due to hysteria .. with advances in medical knowledge and improved medical technology, this approach has been to a large extent discredited ... there must be some reason or explanation why the mind has such a powerful effect on a body as to cause pain and disfunction in the Plaintiff's hand such that it prevents her from doing her typing".

Effectively the Court of Appeal said that if the trial Judge did not find that they believed it was all in the mind, it must be the case that they accepted the doctor called for Ms Pickford and that her condition was genuine.

ICI appealed to the House of Lords.

In a majority decision (one of the four Law Lords disagreed), Ms Pickford lost. She effectively lost on technical grounds - the House of Lords considered that the Court of Appeal had overstepped the mark: the trial Judge was far better placed than the Court of Appeal to assess the evidence.

Some reports in the media after the House of Lords' ruling suggested that there was no need to warn typists of the risk of RSI unless they used a keyboard for more than 75% of their working time. This isn't correct. What the Lords actually said was that writer's cramp was not a common condition, was very rare in typists and it was not the practice in industry at that time to give a warning of a vague condition which wasn't easily identifiable and indeed to have given one might have been counter-productive.

There is more hope for RSI sufferers from the Banking Insurance and Finance Union backed case of Alexander and Others v Midland Bank Plc which was heard in May 1998 but in which Judgment wasn't delivered until Mid June. This involved diffuse RSI conditions and, unlike in Pickford, the Bank workers were not suffering from a prescribed disease. But Midland Bank conceded that in no case was the sufferer consciously exaggerating and the Judge found the pain suffered by each of the claimants was genuine.

The five people involved in the Midland Bank test cases all worked at a District Service Centre which processed cheques and vouchers from banks and shops, recording the transactions on customers' accounts. Each of the workers complained that working on a machine known as an encoder led to the development of an RSI condition.

The system of work operated was demanding: there were targets for each of the encoders; there was a system to monitor when they signed on and off at the beginning and end of their shift and registered breaks in their work; an original tea break of 15 minutes every two hours was reduced to ten minutes; employees were encouraged to compete against their colleagues in teams and there were calls over an address system to encourage them to work faster.

This pressure was combined with a fear (that the Judge found to be genuine) of potential redundancy. The Judge considered that each of the women were "under a considerable physical and mental strain".

Midland Bank received recommendations by a University and by physiotherapists to make changes to the work process. The recommendations of these experts were ignored.

The trial Judge agreed with the claimants doctor that they were suffering from regional fibro-myalgia.

A significant factor in the Judge's decision to accept that the complaints of the individuals were genuine was that to find otherwise he would had to have found that they were vulnerable to psychiatric or psychological conditions when in fact Midland Bank's own appraisal of them was that they were enthusiastic, committed, hardworking, co-operative people who enjoyed their work and were keen to work even after the onset of their aches and pains. The Judge concluded that: "Superficial though this assessment might be, there was not substantive evidence suggesting vulnerability".

In the FT case the dispute was about the introduction of a new computerised system to write, sub-edit, and ultimately print the paper: was it introduced with proper training? Were there adequate chairs? Did the journalists get breaks?

The Judge who heard the case made the point in his judgment that this was not a case about RSI - the point in issue was whether there had been any injury and if so what had caused it? The Judge found that there was no fault in the system of work operated by the FT and in any event the Plaintiffs' complaints were psychological.

All three cases show the challenges facing the diffuse RSI sufferer in bringing a personal injury claim. The decision in Pickford highlights the hurdles the individual has to clear and the importance of convincing the Judge that a condition is genuine.

Whilst the Midland Bank case suggests that diffuse cases can be won. But the demanding nature of the work system and the lack of vulnerability of the sufferers may make it a hard act to follow.

The FT Judgement was harsh but it proves, yet again in an RSI case, the importance of knowing all the medical history of a potential claimant and studying an employers' system of work in detail. You need to be sure that the system of work is unsafe and have good evidence of that.

One thing of which we can be sure: we haven't seen the end of RSI by any means.