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.
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 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 Member States to determine the extent of the employers’ liability in accordance with their duty under Article 4. The UK’s view was therefore that the automatic criminal liability imposed on UK employers subject to the narrowly defined ‘reasonably practicable’ defence gives suitable effect to Article 5.
The salient points of the ECJ’s ruling are as follows:
- The Directive does not impose no-fault liability on employers. This proposition was supported by earlier guidance from the Advocate General and the legislative history of the Directive and its wording.
- The Commission had failed to show that the qualification of reasonable practicability limits the duty of employers to ensure the health and safety of their employees. Accordingly, the UK had appropriately implemented the provisions of Article 5(1).
- The Commission had not established to the requisite legal standard that, in qualifying the duty on employers to ensure the health and safety of workers by limiting the duty to what is reasonably practicable, the UK had failed to fulfil its obligations under Articles 5(1) and 4 of the Directive.
The action was therefore dismissed and the Commission ordered to pay the full costs of the UK Government in the case.
The ruling has been widely applauded by employers, regulators, ministers and practitioners alike. Lord McKenzie, Minister for Health and Safety called the decision “a victory for common sense”, a sentiment echoed across the commercial and legal spheres.
Had the ECJ upheld the Commission’s complaint it is clear that major changes to existing health and safety law would have been required, imposing additional burdens on UK employers. Such a step would have been disproportionate and, importantly, unnecessary, particularly in light of the ECJ’s acknowledgment that the UK is consistently amongst the best performing Member States in terms of accident statistics. The ECJ’s endorsement of the UK’s approach to the regulation of risks to employees is welcome and a signal that the pragmatic risk based system employed in this country is an appropriate transposition of Europe’s intentions. Notwithstanding the clear trend towards ever increasing fines fed by political and public pressure for corporate accountability this decision, coupled with that in the case of R v HTM  EWCA Crim 1156 last year, is an important acknowledgement that this is still a country in which businesses can operate viably and safely.