The ECJ rules the UK's "reasonably practicable" limitation to employers' general health and safety duties does not infringe European Community Law.

The UK has been vindicated by a recent decision of the European Court of Justice ("ECJ"), which held that the UK has not infringed European Community Law by imposing a duty on employers to ensure the health, safety and welfare at work of all employees only "so far as is reasonably practicable".

The Commission's complaint

As reported in our previouse-bulletin, the European Commission ("the Commission") had lodged an application with the ECJ, seeking a Declaration that by limiting the obligation on employers to ensure the safety and health of workers to a duty to do this only "so far as is reasonably practicable", the UK had failed to properly implement Articles 5(1) and 5(4) of the Framework Directive (89/391/EEC) ("the Directive"). 

Article 5(1) provides "the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work"

Article 5(4) provides that the Directive "shall not restrict the option of 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".

In transposing the Directive into domestic legislation, the UK retained the concept of "reasonably practicable". This concept has been a longstanding feature of English law, even predating the Health and Safety at Work Etc Act 1974 ("HSWA").

Section 2(1) HSWA provides 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 challenged the use of the concept in UK domestic legislation, as the Directive itself was not qualified in such a way. It considered its use amounted to a defective implementation of the Directive.

The Commission interpreted the Directive as imposing a no fault liability regime on the employer for all accidents occurring in the workplace. It acknowledged, however, that the absolute duty does not imply that the employer is required to ensure a zero-risk working environment. It recognised that as a result of carrying out a risk assessment, the employer may conclude that the risks are so small that no preventative measures are necessary. However, the key point is that, according to the Commission, the employer should nevertheless remain responsible if an accident were to occur.

The UK position

The UK argued that its system of "automatic" criminal liability on all employers, subject to the "reasonably practicable" defence, which is narrowly defined, serves to give effect to the Directive.

An employer may escape liability only by showing that he has done everything reasonably practicable to avoid risks to the safety and health of workers. He must show that there was a gross disproportion between the risk to the safety and health of workers and the sacrifice (whether in money, time or trouble that the adoption of the measures would have involved) and that the risk itself was insignificant in relation to that sacrifice.

The UK also argued that the HSWA implements an effective system of prevention, as a criminal sanction has a greater deterrent effect than civil liability (against which employers are able to take out insurance cover). That effectiveness is borne out by statistics which show the UK has long been one of the Member States recording the lowest number of workplace accidents.

The ECJ's verdict

The ECJ (whilst not bound to do so) decided to follow the Advocate General's opinion, given earlier this year, which was favourable to the UK's interpretation.2

The ECJ held that Article 5(1) was not intended to give rise to a no fault liability regime in the event of a workplace accident and the "so far as is reasonably practicable" concept is not contrary to the Directive. Article 5(1) simply embodies the general duty of safety to which the employer is subject, without specifying any form of liability.

It did not matter that the UK and Ireland's request for the reasonably practicable concept to be incorporated in the definition of the employer's responsibilities was expressly rejected during the course of the working party discussions in relation to the Directive. This did not justify an interpretation of Article 5(1) to the effect that the employer is subject to a form of no fault liability.

The ECJ emphasised that the Commission must prove the existence of the alleged infringement. However, the Commission failed to establish in what way the UK law infringed Article 5(1) and (4) or, that in excluding a form of no fault liability, the employer's responsibility was limited contrary to the Directive.

The action brought by the Commission was therefore dismissed and the Commission was ordered to pay the UK Government's costs.

The response

Had the ECJ ruled in favour of the Commission, it is likely significant changes to domestic legislation would have been required. However, following this final ruling, the status quo remains.

A potential defendant will continue to be able to assert that the duty owed is qualified by reasonable practicability. As previously reported, the R v HTM case helps define the parameters of that exception to the general health and safety duty owed by employers.

Bill Callaghan, Chair of the Health and Safety Commission has welcomed the ECJ's decision, emphasising that the UK has the best occupational safety record in Europe:

"We continue to believe that the right way forward is a proportionate and risk-based approach protecting employees and others effectively, whilst allowing commonsense to be applied when deciding on what protective measures to adopt."