The EU Commission’s decision to launch a court case against the UK over the way it implements EU health and safety rules looks to have backfired.
In the first stage of the ruling, Advocate General Paolo Mengozzi has said that the main plank of UK health and safety legislation – the Health and Safety at Work Act 1974 (HSWA) – does not violate the EU’s directive on health and safety.
The Advocate General’s opinion is not binding on the European Court of Justice but is usually followed.
The Commission claims that the HWSA phrase ‘so far as is reasonably practicable’ does not go far enough in implementing the EU’s directive.
It says that the employer is liable for the consequences of any event that is detrimental to workers’ health, regardless of any preventative measures, with the exception of certain special events. In other words, the Commission believes that workplace injuries should be strict liability offences – so there would be no need to prove intent.
But Mengozzi points out that the duty required by the directive is “positive action, consisting in the adoption of measures designed to pursue the objective of protecting the safety and health of workers”.
He says the duty is one of prevention and requires employers to adopt “all necessary measures” with regard to workers’ health and safety and adapt to “technical progress”.
But his key comment is: “The general duty to ensure safety laid down in the directive does not extend so far as to require the employer to provide a totally risk-free working environment. The employer’s liability resulting from the directive is liability based on fault, which flows from a failure to discharge the duty to ensure safety.”
As a result he finds that the commission’s arguments “are based on an incorrect interpretation of the provisions of the directive”.
He also said the commission had launched its action without carrying out a “proper assessment” of the UK’s sanctions for breaching health and safety law.
A final ruling is expected later this year.