A Narrow Escape?
The European Court of Justice has now ruled in the case of the European Commission -v- United Kingdom. The decision had the potential to cause a major shake-up to the law of health and safety in the United Kingdom. By attacking the classic obligation on employers to do everything "reasonably practicable" as insufficient, the European Commission essentially sought to hold employers strictly liable for all health and safety violations.Background:
The backbone of health and safety legislation in the United Kingdom is the Health and Safety at Work Act 1974. The 1974 Act was enacted before the primary European health and safety legislation; the so-called Framework Directive of 1989. The impact of the Framework Directive was relatively limited because the government took the view that the 1974 Act was sufficient for compliance with the Framework Directive.
However, the European Commission claimed that one of the main provisions of the 1974 Act, which provides that an employer must "ensure so far as is reasonably practicable, the health, safety and welfare at work of all his employees" (section 2), was an inadequately robust implementation of the Framework Directive. The United Kingdom challenged this assertion, resulting in a prolonged action before the European Court of Justice.
The Decision:
The court ruled on 14 June 2007 that the 1974 Act, with its "reasonably practicable" test, does adequately comply with the Framework Directive. It also ruled that the Framework Directive does not require member states of the European Union to impose strict (no-fault), liability on employers.
Why is this important?
The United Kingdom is not now obliged to amend the 1974 Act and the provisions of that legislation remain fully in force. If the decision had gone the other way, the law in the United Kingdom would have changed to one of strict liability – an uncomfortable position for employers.
Domestic Challenges:
Aside from this European challenge, the domestic courts in the United Kingdom have been giving further consideration to the scope of what is "reasonably practicable". These words define both what employers must do every day, and also the standard by which they will be judged following an accident or the creation of a risk.
In particular, the courts in the United Kingdom have considered whether part of the "reasonably practicable" test is whether an accident was "reasonably foreseeable". The case of R-v-HTM Ltd (Court of Appeal)(2006) illustrates the importance of this, seemingly technical, distinction. Two employees were tragically killed when mobile light towers made contact with overhead power lines. The employer argued that it had done everything "reasonably practicable". The accident was caused by the conduct of the deceased men acting contrary to training. Their actions were not "reasonably foreseeable".
The Court of Appeal found that judges and juries were allowed to take into consideration whether the risk was "reasonably foreseeable" but that it should never be the sole determining factor in deciding whether everything "reasonable practicable" had been done by an employer.
Implications:
The extent to which employers can use arguments based on "reasonable foreseeability" of employees conduct, remains unclear. But note that they can never be used in a case based on the Management of Health and Safety at Work Regulations 1999, which specifically prevents an employer using as a defence an employee's (unforeseeable) conduct.
How can McGrigors Help?
McGrigors has a market leading health and safety team. We are able to provide pre-emptive advice on any health and safety matter, can advise during a Health and Safety Executive investigation and can provide full representation in any resulting prosecution, through our in-house counsel.
|
 |
Matthew Hancock Assistant Commercial Litigation Team Tel. 0141 567 9415 matthew.hancock @mcgrigors.com |
2007 McGrigors LLP . All rights reserved. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. Neither this nor any other communication is intended to be, or should be construed as, an invitation or inducement (direct or indirect) to any person to engage in investment activity. McGrigors is regulated by the Law Society of Scotland. McGrigors London is regulated by the Law Society of England and Wales.