UK: Health & Safety - EU’s Challenge To ‘Reasonably Practicable’

The 10-year battle between the EU Commission and the UK government is nearing a conclusion, with the Advocate General delivering an opinion in favour of the UK retaining the ‘so far as reasonably practicable’ defence in its health and safety legislation.

The opinion has yet to be considered by European Court of Justice, which can follow or reject it. A final decision is expected in summer 2007.

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The European Commission’s legal challenge alleges that the clause "so far as is reasonably practicable" (the SFAIRP) in UK health and safety law qualifies employers’ obligations in a way that is inconsistent with the framework directive 89/391/EEC.

Where the SFAIRP clause applies in UK law employers can escape liability if they can demonstrate that they have done everything reasonably practicable to avoid risks to the safety and health of workers. The legal burden of proof here is on employers to show that there is 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 required to prevent this risk from arising would have involved and that the risk itself was insignificant in relation to that sacrifice.

The Commission argues that the framework directive precludes any of these considerations of fault on the part of employers, and that national laws of Member states should impose strict liability on employers for any event prejudicial to the safety and health of workers which occurs in their undertakings. The sole possible exceptions to this that the Commission accepts are permissible are in effect cases of the cases force majeure specifically mentioned in Article 5(4) of the framework directive as being optional for Member States to allow in their laws, namely ‘unusual or 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 Advocate General concluded that the wording of the relevant passages of the framework directive defined the substance of employers’ duties as being to ensure safety, but that it did not follow that the legal mechanisms for imposing liability could not take into account questions of the extent to which fault or negligence had caused a breach of the duty.

This opinion was influenced by evidence that in the negotiations leading up to the framework directive the conceptually different approach existing UK (and Irish) law had been highlighted and directive was intended to accommodate this.

The ultimate decision of the European Court of Justice has potentially significant implications for all UK employers. A finding by the Court against the UK government could result in it being forced to make modifications to the SFAIRP clause to limit its effects to cases where risks were unforeseeable or which could never be guarded against by any practicable means. In particular, the ‘gross disproportionality’ test of the time or effort of preventative measures would cease to be a relevant consideration in an offence.

The wider ramifications of a change to UK law could be far-reaching, for example on the continued use of the ‘ALARP’ concept in safety cases, other forms of permissioning and risk management generally. It could also require reconsideration of the criteria the HSE apply to enforcement decisions.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 05/02/2007.