The European Court of Justice ("ECJ") has ruled that the UK qualification "so far as is reasonably practicable" to the strict duty on an employer to “ensure the health, safety and welfare at work of all his employees” is consistent with European law. This case has provided some useful guidance on the extent of the "so far is as reasonably practicable" limitation. Had the ECJ found in favour of the European Commission who brought the case, it would have resulted in the redrafting of the main provisions of the Health and Safety at Work etc. Act 1974 (“the Act”).

This bulletin considers the case, summarises the key findings of the ECJ and provides an insight as to the issues that a court will consider when a defendant seeks to establish that they have protected the health and safety of their workforce "so far as is reasonably practicable."

The Commission’s complaint

In March this year the European Commission brought proceedings against the UK for alleged failures in relation to the implementation of Directive 89/391/EEC (“the Directive”). The European Commission's complaint was that the UK's decision to subject the strict liability (or “no-fault” liability as described by the ECJ) offences in section 2 of the Act to the proviso, "so far is as reasonably practicable," resulted in a lower safety standard being required of employers in the UK than in other Member States.

Is strict liability strictly necessary?

The Court first examined whether Article 5(1) of Directive 89/391 required Member States, as the Commission submitted, to impose no-fault liability on employers for all accidents that occur in the workplace. Article 5(1) provides that;

“The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work” The European Commission argued that this was an absolute duty. However, Article 5 (4) allows Member States to provide for;

“the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.”

The ECJ was clear that the Directive allowed for certain limited defences to be permitted, by way of limiting or excluding liability. This prevented the Commission from establishing that Member States could only transpose the obligations through absolute liability offences. to vie

How far does the duty to workers extend? – The Commissions argument The Commission argued that the UK's use of the "so far as is reasonably practicable" provision went beyond the exclusions that are listed in Article 5 (4). The Commission submitted that the duty set out in Article 5 (1) on the employer is absolute. It expressly acknowledged that the duty does not imply that the employer is required to ensure a zero-risk working environment, nor must it carry out preventative measures where the risks are deemed to be very small. However, it contended that although the duty did not stretch this far, as far as liability is concerned the employer remained responsible if an accident were to occur.

The Commission argued that Article 5 (4) only provided a defence of force majeure to the absolute obligation of ensuring the safety and health of workers. The Commission argued that the UK’s use of the wording “so far as is reasonably practicable” excluded the employer from liability not just in exceptional circumstances that would typically be associated with "force majeure", but in a variety of other circumstances, such as where the financial outlay of safety provisions was found to be too expensive, or too time consuming.

The UK's response The UK stated that the defence of “so far as is reasonably practicable” exactly mirrored the exclusion provision, citing case law that had been decided in the national courts to illustrate the narrow interpretation that is applied. The UK submitted that the national courts would only find in the employers favour if the cost of installing safer systems was grossly disproportionate to the risks of an accident occurring and the gravity of the injuries suffered. The UK also stated that this was an objective test and did not consider the impecunity or otherwise of the defendant.

The UK also argued that the Member States were left with discretion as to how to transpose the Directive. It stated that three elements varied between States;

  • whether to adopt a civil or criminal code of offences
  • whether compensation is awarded to victims of workplace accidents
  • which party meets the cost of workplace accidents

The UK argued that the balance that the UK had struck in relation to those three elements was effective and had resulted in the UK having the best health and safety record of all the Member States for 2003, with a rate of 1.1 fatalities per 100,000 workers compared with the EU average of 2.5.

The decision The Commission's action was dismissed. The ECJ found that the Commission had not established that, in excluding a form of no-fault liability, the clause "so far as is reasonably practicable" limits the employers’ responsibility beyond what the Directive permitted. The judgement went on to say that the Commission had not established to the requisite legal standard that by limiting that duty to what is reasonably practicable, the United Kingdom has failed to fulfil its obligations under Article 5(1) and (4) of Directive 89/391.

However, the ECJ agreed with the Commission that the exclusion provision in Article 5 (4) must be interpreted strictly. This is a key point in the case, which supports a narrow interpretation of the clause “so far as is reasonably practicable.”

he implications Prosecuting authorities (the HSE or the Local Authority) will now be looking to this judgement in all their cases and will undoubtedly be requesting that the courts take a robust approach to a defendant's "so far is as reasonably practicable" submission. In line with Article 5 (4) all due care would have to have been exercised by the defendant. For the defence to apply the breach would have to have been as a result of an exceptional event or due to unusual and unforeseeable circumstances, which were beyond the employers’ control.