European Court of Justice upholds UK approach to health and safety law

On 14th June 2007, the European Court of Justice (ECJ) held in Commission v UK C-127/05 that the UK’s use of the expression “so far as is reasonably practicable”, where it appears in UK Health & Safety law, was not inconsistent with the UK’s obligations under the Framework Directive 89/331. This ruling will be particularly welcomed by the risk aware offshore industry, given the considerable number of offshore health and safety regulations that make reference to the reasonable practicability defence.

The Commission argued that Article 5(1) of the Framework Directive 89/331 had been incorrectly transposed into the UK’s national law by use of the expression “so far as is reasonably practicable”. It was argued for the Commission that the provisions of the Health and Safety at Work Act 1974 generally and in particular, section 2(1), by use of this expression, limited the employer’s duty to its employees. The Commission suggested that an employer would ultimately be able to evade responsibility if he or she could demonstrate that it was not “reasonably practicable” to do anything further to ensure the health and safety of workers at the relevant time. It maintained that such an exclusion of liability was not envisaged by the Framework Directive and therefore the continued use of this expression caused the UK to have failed to fulfil its obligation to correctly implement the terms of the Directive into national law.

The UK in response argued that the principle of the Framework Directive 89/331 is not to impose no-fault liability on employers, nor to guarantee a risk-free working environment. The UK’s legal challenge was based upon proportionality in the use of the expression itself. It maintained that the expression was narrowly defined and thereby only allowed employers to escape liability where they could show that they did everything reasonably practicable to avoid risks to the safety and health of workers.

Given the potentially far reaching consequences that a decision against the UK could have created, the outcome of the case has been awaited by employers and insurers alike, and will, no doubt, be received with welcome and relief. Although favourable to the UK, the outcome of this case brings into sharp focus the current use of the defence of “reasonable practicability” in the UK Courts and the basis on which such a defence might continue to be justified.