UK succeeds on "reasonably practicable" test

European Court dismisses Commission allegation that health and safety law defective

News, 19 June 2007

The UK health and safety law requirement on an employer to ensure, "so far as is reasonably practicable", the health, safety and welfare at work of all employees, complies with EU requirements, the European Court has ruled.

In its judgment dismissing the case brought by the European Commission, which alleged that the law failed to meet the Community standard, the Court ruled that the Commission had not established its case, to the requisite legal standard, that the UK legislation was contrary to the provisions of the Health and Safety Directive.

The directive provides that the employer has a duty to ensure the safety and health of workers in every aspect related to work. As a derogation from that rule, member states may provide for the exclusion or the limitation of employers' responsibility where "occurrences are due to unusual and unforeseeable circumstances, beyond the employer's control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care".

The Commission challenged the UK test as contained in the Health and Safety at Work etc Act 1974. It maintained that the Act allowed an employer to escape his responsibility if he could prove that the adoption of measures which would 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.

According to the Commission, the only derogation possible from such a responsibility was in the circumstances expressly laid down in the directive, which, as an exception to the general principle that the employer was responsible, had to be interpreted strictly.

Basis of the directive

In its judgment the court pointed out that the Commission based its argument
on an interpretation of the directive that would subject the employer to no-fault liability, whether civil or criminal. Such a reading of the directive, the court said, could not be based on the wording, the legislative history or the scheme of the directive.

The court further observed that the Commission had not shown in what respect the objective of the directive could not be attained other than by setting up a no-fault liability regime. It concluded that the Commission had not established that, in excluding such liability, the disputed provision limited employers' responsibility, in disregard of the Directive.

As regards the effect of the exemption on the employer's duty to ensure safety, the court found that the Commission had not sufficiently clarified its interpretation of the content of the duty, or in what way the exemption infringed the directive having regard to its interpretation in UK case law cited.

The court's judgment can be read at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-127/05 .