Luxembourg, 01/02/2007 (Agence Europe) - On Thursday 18 January, Advocate General Paolo Mengozzi delivered his conclusions in case -127/05 at the Court of Justice. Contrary to the argument of the Commission, Mr Mengozzi considered that British health and safety standards in the workplace, and particularly the requirement on the employer in the United Kingdom to take steps which are “reasonably practicable” to reduce the risks to which employees are exposed, did not infringe Community law. This conclusion acknowledges differences in legal culture, but also falls within a debate that is as much political as legal.
On 29 September 1997, the Commission sent the United Kingdom a formal notice, in which it accused the UK of not implementing the framework directive on health and safety at work (Council directive 89/391/EEC). Among the deficiencies stated was the unsatisfactory transposition of Article 5, because of the existence in English and Welsh law of the “so far as is reasonably practicable” clause (henceforth referred to as the “SFAIRP clause”). In the Commission's opinion, this clause could allow employers to avoid their responsibilities with regard to working conditions. Having received the backing of a number of national judges, London maintained its position in the face of this criticism, even after receiving a reasoned opinion in 2003. The Commission, therefore, took the matter to the Court of Justice. If it were to follow the Advocate General's conclusions, which consider the SFAIRP clause, as applied by UK authorities, does not infringe Community law, the Court would reject the Commission claims.
Commission's argument The Commission bases its position on Article 5 paragraph 1 of the directive which states, “The employer shall have duty to ensure the safety and health of workers in every aspect related to the work”. The United Kingdom is required to ensure that this provision is transposed into national legislation, and is respected. The relevant national legislation is the Health and Safety at Work Act 1974 and its subsequent amendments (hereafter referred to as the “HSW Act”), which currently limits employers' obligations through the insertion of the SFAIRP clause in a large number of cases. Section 2 of the HSW Act says in its first paragraph: “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 Commission is concerned that this clause could be used by UK employers to avoid investing in the safety and health of their employees. Employers will always be able to challenge the extent of their responsibility by claiming “unreasonable” costs, since deciding what is and what is not “reasonable” is, by its nature, subjective. By leaving it to courts to decide what is reasonable, the British state is not assuming its responsibility to ensure appropriate protection for workers, says the Commission.
The United Kingdom position The Department of Work and Pensions (the government body responsible for legislation on working conditions, referred to henceforth as the “DWP”) strongly maintains that the Commission's legal interpretation does not take account of the specific nature of English and Welsh legal system. Under this system, judges can only exercise their discretion in common law cases. In written law relating to workers' health and safety, unlike in most other European legal systems, the law has always to be applied to the letter. Any legislation used to transpose Community law in England and Wales falls automatically into the second category. The court, consequently, has no margin for discretion.
Since employers are required to comply with the law to the letter, the consequence of removing the SFAIRP clause would be to require employers to ensure their workers enjoyed working conditions where there were no risks, something which is manifestly impossible. The DWP spokesman gave EUROPE the following example: “If your offices have a flat roof, and a member of staff ignores a warning sign, breaks down a locked door, climbs onto the roof and manages to fall off, then the employer is quite likely to say they did everything reasonable. However, they obviously didn't manage to eliminate all the risks”. This British specificity was incorporated into the procedure and expressly acknowledged in paragraph 88 of Mr Mengozzi's conclusions. He adds elsewhere this interpretation, going against the Commission: “It is my view that the Commission's arguments are based on an incorrect interpretation of the provisions of the framework directive” and he says too that “the general duty to ensure safety laid down in Article 5(1) of the framework directive does not extend so far as to require the employer toprovide a totally risk-free working environment”.
This conclusion does not please all the stakeholders, even though several employers' associations, including the British government itself, welcomed the stance taken by Mr Mengozzi. Those representing workers' interests, however, have expressed serious concern over the impact it could have on workers' welfare throughout the EU. Laurent Vogel, a researcher in the health and safety department of the European Trade Union Institute - Research, Education, Health & Safety (ETUI-REHS), is worried that this could be a political row, the effect of which would be to reduce workers' safety. “The SFAIRP clause was only retained in the European legislation to prevent some member states using their veto,” he told EUROPE. “Since the Single European Act (in 1986), the veto has no longer applied, so the clause was removed (in 1988).” Rather than re-word national legislation to bring it into line with Community law, as was done in Ireland, which found itself in the same position, the British authorities “decided, for political reasons, to retain the wording and head towards conflict with the Commission”. According to Mr Vogel, the result is that employers can use a “cost effectiveness” argument to question the need for any investment in safety, something which is far from ensuring a working environment that is in line with Community law.
The final outcome, however, seems to ignore the political dimension, and the Advocate General's deep and purely legal analysis shows that “various factors drawn both from a literal and historic reading of the provision at issue argue against interpreting it in accordance with the Commission's argument”. It remains to be seen how the other member states, where other systems of common law operate, will react. This concerns especially those countries which have a historic link with Great Britain - Ireland, Malta and Cyprus. Ireland has already decided to provide its legislation with a full explanation of the meaning of the term “reasonably practicable”, and also the range of relevant requirements. Malta and Cyprus have yet to finalise the measures they will take. (cd)