After a 13 year battle an unemployed ex-employee of Tesco is likely to lose her house and find herself being made homeless after she lost her claim for £100,000 for injuries sustained during the period when she worked for the company.
Tesco, who last year made £1.22 billion profit are poised to take court action against Mima Rae, aged 58, from Falkirk to uplift expenses in the region of £23,000 against her. “Unnecessary costs have been incurred” said Steve Gracey, Tesco’s press officer, and the case was “now in the hands of our insurers”.
Mrs Rae, had hoped that armed with a wealth of Ergonomic evidence, the results of her research into the cause of checkout injuries and a lengthy list of operators injured in Tesco’s Falkirk store she could prove that her injuries were ‘caused by the fault and negligence of Tesco’. In July 2003 Mr Craig Caldwell at Falkirk Sheriff Court ruled against her and expenses were awarded to Tesco.
Mrs Rae started as a part time check out operator at the Falkirk store in 1986. In a letter to Tesco’s Chief Executive Sir Terry Leahy, in August 2003 she claims to have been “proud to work for Tesco” until she was sacked in November 1992.
Mrs Rae asked Mr Leahy to get Tesco to make her a ‘suitable offer as a goodwill gesture’ for the pain and suffering she claims to have suffered from her employment with the company’.
Last year Mr Leahy enjoyed a basic salary of £916,000, £8,000 from profit sharing, £1,849,000 in bonuses and a gain of £2.4 million in share options. Other Tesco board members were all paid over a million pounds.
Mrs Rae regularly worked on “the express checkout” one of the busiest in a store. She claims its proximity close to the main doors meant “we often sat with our feet encased in brown paper bags to try to keep warm” as documented in a letter to the shop workers union USDAW’s legal department on May 27th 1993.
In 1988 and 1989 she was briefly off work when she claims to have suffered two episodes of upper back, neck, shoulder and arm pain. In 1990 she claims to have begun to experience pain radiating from the middle finger of her right hand. In May a new laser system (EPOS) was installed. Mrs Rae claimed there were numerous problems with the seats and the belts which moved the goods from one end of the checkout counter “either ran slowly; over-ran, not stop at all, or occasionally jam.”
During a 4 hour shift in September 1990 she says she had to continually drag a jamming conveyor belt so that she could process the goods on the belt. She took time off from work “after I suffered back strain”. Mrs Rae claims this should have been recorded in the in-store accident book by the staff manageress, but it wasn’t.
According to Francis McGale from Stenhousemuir, who worked during the 1980s as a Produce Manager for 4 Tesco stores including Falkirk, the reporting of accidents “was actively discouraged…by store managers.” Meanwhile an in-store maintenance engineer at the Falkirk store also confirmed that he “was often called to repair the checkouts”.
In 1991 Mima suffered strained ligaments and muscle spasms in her lower back and across her shoulders. She paid privately for osteopathic treatment. Her request to drop her busiest and longest shift and for an additional five minutes on her unpaid tea break were refused.
In December 1991, aware that her repeated absences were putting her employment in jeopardy she approached Mr W Keeley, her USDAW representative who advised her to attempt to try to force Tesco’s hand by getting the cause of the accident in 1990 retrospectively recorded in the store’s accident book.
A lawyer was appointed to her case and she was medically examined in April 1991. When she obtained the report she claims that it was extremely inaccurate as it made no mention of her ligament strain and muscle spasms, or the treatment she had received for them.
In July 1992 she was offered a job in Tesco’s garage which she turned down as it would have required prolonged periods of sitting down. She remained on sick leave to help her back recover.
In November 1992 Tesco terminated her employment. As this was a breach of her Contract of Employment she followed Tesco’s grievance procedure and in February 1993 was told that each time a vacancy arose in the store, the suitability or otherwise of the position would be discussed with her.
She was again offered a job in Tesco’s garage but with shifts that ended at midnight when public transport had ceased. She turned this down. When in June 1993 she inquired about forthcoming job vacancies, she says she was told that the only job on offer was five evenings a week collecting damaged stock and told ‘take it or leave it’.
Meanwhile other Tesco employees in Falkirk began to report to her similar injuries. They were unwilling to go public. In May 1993 Mrs Rae sent a sample of ten of the names, out of a total of 23, in a letter to Mr McLean of USDAW. One employee reported suffering from acute tennis elbow and strain to neck, shoulder and upper arm. Another reported pain in neck and shoulders, two others had acute tennis elbow.
Mrs Rae hoped USDAW would discreetly contact those on list, but she is not aware if they did. She wanted to show she was not the only employee at Falkirk suffering from RSI.
Instead on 19th July 1993, the union wrote to say they were no longer prepared to pursue her case. She privately instructed another lawyer and on 6 September 1993, one day before the three year time limit a writ was delivered to Tesco but the case remained on ice for the next four years. In 1997, dissatisfied with the inaction of her lawyer, she changed lawyers and they obtained an offer from Tesco for £2,500 plus expenses. She turned this down.
Mrs Rae was not the only check out operator pursuing a RSI claims. In June 1998, Doug Russell, Health and Safety Officer for USDAW claimed to know of more than 650 other cases involving USDAW members, with 50 till workers obtaining settlements for injuries. He said “it is hard, physical work”.
Concerns for the welfare of checkout operators first surfaced in the mid 1980’s. It was suggested that the operation of some checkouts was associated with high levels of musculoskeletal disorders, principally affecting the lower back, upper arm-neck-shoulder region and in the hand/wrist area.
Mr Russell, in 2004, said that USDAW are currently pursuing “a few hundred” cases of RSI complaints. He said that since the 1980s “new technology has brought about big improvements” for check-out operators with “companies such as Tesco now involving operators in designing the structure and lay-out”.
Mrs Rae’s case against Tesco finally reached the Diet of Proof stage at Falkirk Sheriff Court in May 2003. The Sheriff presiding said he accepted Mrs Rae was ‘an honest and reliable witness’ who had suffered ‘considerable pain’ after her shift on September 7th 1990 which continued thereafter. However he concluded that ‘the medical evidence is to the effect that her injuries were the result of a pre-existing disposition to back injury’. He however he had ‘no doubt’ that her health problems were ‘partially attributable to her employment as a checkout operator for some years’.
In other words Justice Caldwell agreed with Mrs Rae that some of her health problems had been caused by working at Tesco’s but these had to be overlooked as she had already experienced problems with her back.
Mrs Rae’s doctor however had earlier confirmed that she had never had extensive treatment for her back prior to her back strain in 1990. Mrs Rae has been left “confused and angry” but ultimately she has lost her case and owes Tesco £22,893.36
Steve Gracey, Tesco’s press officer, said “company policies at the trial were vindicated” and that “three years previously Tesco made Mrs Rae an offer which she refused.”
Mrs Rae is disappointed. “I still think that Tesco should be brought to book for what has happened to me. My physical and mental health has been compromised over the past 13 years, I am now unemployable, broke and the financial drain has ruined a once happy marriage. Every penny I have earned since leaving school has been swallowed up in my court case”.
Kenneth Mcewan, case worker for MSP member Carolyn Leckie, has urged “Tesco to drop the case” as “they can afford to.” He said that “he was concerned about the welfare of other check-out workers” pointing out that Mima Rae had produced a great deal of evidence to show that check-out workers had suffered as a result of their working conditions.
© Mark Metcalf