VE Day For Reasonable Practicability

European Commission v United Kingdom

Last week, almost 10 years after the complaint was first intimated, the European Court of Justice (ECJ) dismissed the European Commission's challenge that the UK had failed to appropriately transpose the EC Framework Directive on health and safety (89/391/EEC). In the process, the ECJ upheld one of the fundamental principles of UK health and safety law, the concept of reasonable practicability. The Commission argued that by qualifying employers' duties in this way, the Health and Safety at Work etc Act 1974 ("HSWA") was incompatible with EC law because it restricted the requirement upon employers to safeguard the health and safety of their workers. The ECJ ultimately found that this was not so.

The legislation

Section 2(1) of HSWA states that "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees".

The Commission contended that this provision was contradictory to the Directive. In particular:

Article 4 requires that Member States shall take the "necessary steps to ensure that employers, workers and workers' representatives are subject to the legal provisions necessary for the implementation of this Directive." Further, "Member States shall ensure adequate controls and supervision".

Article 5 provides that "the employer shall have a duty to ensure the health and safety of workers in every aspect related to work."

The arguments

The Commission submitted that:

Section 2(1) of the HSWA means that an employer is not liable for the risks that arise as a consequence of his undertaking if he is able to demonstrate that he took all reasonably practicable measures to ensure the health and safety of his employees in those circumstances. This imposes a qualification not present in, or intended by, the Directive.

By limiting the duty in this way, the UK allows employers to escape liability if it can be proved that the adoption of measures that make it possible to ensure the safety and health of workers would have been grossly disproportionate in terms of money, time or trouble when balanced against the relevant risk.

The UK argued that:

Notwithstanding the absolute terms in which the duty is expressed in the Directive, the obligation is a general one, to provide a safe workplace, not to guarantee "a risk free working environment".

Nothing in the Directive imposes a no-fault liability on employers, and it is left to...