| HEALTH AND SAFETY — Employer’s duty — Duty under EC Directive to ensure workers’ safety and health in all work aspects — UK legislation imposing duty “so far as is reasonably practicable” — Whether Directive requiring no-fault liability — Whether UK legislation contrary to Directive — Health and Safety at Work etc Act 1974, s 2(1) — Council Directive 89/391/EEC on safety and health of workers at work, art 5
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-127/05)
ECJ: President of Chamber Rosas, Judges Tizzano, Borg Barthet, Lõhmus and Ó Caoimh: 14 June 2007
Because, inter alia, the provision in art 5(1) of Directive 89/391 imposing a duty on employers to ensure the safety and health of workers did not require employers to be subject to no-fault liability, the Commission of the European Communities had not established that, by restricting the duty on employers to ensure the safety and health of workers in all aspects related to work to a duty to do that only “so far as is reasonably practicable”, the UK had failed to fulfil its obligations under art 5(1) and (4) of the Directive.
The Third Chamber of the Court of Justice of the European Communities so held when dismissing an application by the Commission for a declaration that the UK had so failed in its obligations by reason of that restriction.
Art 5 of Directive 89/391 provides: “(1) The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work. … (4) This 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.”
S 2(1) of the Health and Safety at Work etc Act 1974 provides: “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 COURT said that the Commission’s primary criticism of s 2(1), that it introduced a limit on employers’ liability in the event of an accident, was based on an interpretation of art 5(1) to the effect that the employer was subject to no-fault liability, whether civil or criminal. However there was no warrant for that interpretation. Art 5(1) simply embodied the general duty of safety to which the employer was subject, without specifying any form of liability. Art 5(4) explained the margin of manoeuvre available to the member states in transposing provisions of Directive 89/391 into national law: it could not be inferred, by a contrario reasoning, that the Community legislature intended to impose on member states a duty to prescribe a no-fault liability regime for employers. The Commission had therefore not established to the requisite legal standard that s 2(1) limited, in disregard of art 5(1) and (4), employers’ responsibility. For reasons given by the court, the Commission had also not made good its second argument that s 2(1) limited, in disregard of art 5(1), the duty of employers to ensure the health and safety of workers. The application would therefore be dismissed. |
