ECJ gives judgement on employer's defence clause in UK health and safety law

Sean Elson, senior associate at Pinsent Masons adds:

"This is good news for the UK, which after all has one of, if not the, best workplace safety record in Europe. The judgment is welcome as if this had been lost there may have been a need for a revision of health and safety laws in this country - potentially with an absolute, no fault liability on employers. The law will remain essentially as it is - unless Europe decide to look again at the issue in subsequent directives. The decision of R v. HTM remains very important for employers as it has widened to a degree the scope of the exception to what is otherwise an absolute duty.

It is a big step from "so far as is reasonably practicable" to "ensure the health & safety of workers in every aspect related to work".

It is noteworthy that the European Court of Justice in the end (after years) rejected the European Commission's claim that "reasonably practicable" was essentially a "get-out" clause for employers.

The court clearly have a better understanding of pragmatism and common sense when it comes to assessing risk and taking steps to secure the safety of workers than the Commission has. The very expression "ensure the Health & Safety of workers in EVERY ASPECT related to work" is actually impractical. Taken to its logical conclusion this could mean that workers would have to wear suits of armour, have self contained breathing apparatus as standard, never have to lift or carry any weight over one gram, never have to work at a height greater than 1 cm, have every conceivable type of eye, ear and hand protection (apart from the armour) and drive around in tanks on company business to ensure they don't get hurt in any collision.

Yes, all rather foolish but it does irritate when we know that many members of the EU have pretty poor records on worker safety and the UK essentially leads in the field. The Commission would make better use of its time looking into the Health & Safety regimes of Greece, France (where a shrug of the shoulders seems to answer any safety query) and others.

Well done the Court of Justice for knocking back this claim.

Julian,

David Wright, solicitor at Kennedy?s gave his opinion on the ECJ ruling to Workplace Law today:

?My suspicion is that as far as the short term is concerned, and by ?short term? I mean years rather than weeks (bear in mind the fact that the Commission?s attack on reasonable practicability dates back ten years), no changes will be required or effected to the relevant provisions of UK health and safety legislation. All the indications from the Government and the HSC/E to date suggest that they have no wish to alter the status quo and they indeed have cited its results, in terms of the UK?s comparatively impressive safety record, in support of the existing legal framework and reasonable practicability?s place within it.?

Can Workplace Law give us their opinion on what, if anything, will or should change with regard to H&S Law as a result of this judgement. My feeling was if the claim was upheld we would almost have to re-write everything but even if was rejected there would still be some implications for our existing legislation.