Reasonable practicability survives EC challenge

News | HSW
12.08.2007

The minister for health and safety has hailed the European Court of Justice's (ECJ's) ruling on the "reasonably practicable" principle in UK safety law as "a victory for common sense", but legal experts believe British legislators may have had a narrow escape.

On 14 June, the ECJ rejected the European Commission's challenge to the UK's implementation of European safety law. The court decided the commission had failed to demonstrate that the "so far as is reasonably practicable" (SFAIRP) qualification falls short of the requirements of the Framework Directive.

The Framework Directive on Health and Safety requires employers to protect employees from all threats to their health and safety except in "very special circumstances". The commission argued the UK's SFAIRP qualifier (which involves weighing a risk against the trouble, time and money needed to control it and allows dutyholders a degree of flexibility) does not meet the required standard in protecting workers from safety risks.

But the ECJ ruled that the commission's case against the UK was flawed, its judgment concluding: "the commission has not established to the requisite legal standard that, in qualifying the duty on employers to ensure the safety and health of workers in every aspect related to the work by limiting that duty to what is reasonably practicable, the United Kingdom has failed to fulfil its obligations."

The decision was met with relief in the UK, where a victory for the commission would have meant far-reaching legislative changes. Health and safety minister Lord McKenzie welcomed a "victory for common sense", while Health and Safety Commission chair Bill Callaghan said the UK has the "best occupational safety record in Europe" and reiterated his support for a "proportionate and risk-based approach."

Yet lawyers cautioned that the judgment is far from an endorsement of the UK's approach.

"I think a lot of the reason for the decision was the manner in which the commission presented their case," Jan Burgess of solicitors CMS Cameron McKenna told HSW. "It was perhaps not as well put together as it could have been."

David Young, partner at Eversheds solicitors, agreed: "It was a bad defeat for the commission and potentially an embarrassing one, because the basis upon which they lost wasn't even on the reasoning of the judges preferring the UK's arguments over the commission's; it simply said the commission had failed to do enough to prove its case."

Young added that, "however subconsciously", the case may result in HSE inspectors "putting the bar a tiny bit higher" when assessing whether employers have done all that is reasonably practicable, "and that may in turn mean a few extra prosecutions".

There is no appeals procedure so the ruling ends the case.