Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (2007, IRLR 720)
European law requires governments of member states to accurately transpose directives into national law.
In Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (2007, IRLR 720), the European Court of Justice (ECJ) said that the UK had correctly transposed a European health and safety directive.
Relevant law
Article 5(1) of European directive 89/391/EEC (introduced to improve workers’ health and safety), imposed a duty on employers to “ensure the safety and health of workers in every aspect related to the work”.
Article 5(4) then says that it is not contrary to the directive for member states to exclude or limit employers’ responsibility “where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.” Member states were not, however, obliged to “exercise the option referred to in the first sub-paragraph.”
The government then transposed this provision into section 2(1) of the Health and Safety at Work etc Act 1974 (HSWA). This states that “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.”
Basic facts
In 1997, the Commission complained to the UK that including the words “so far as is reasonably practicable” into section 2 restricted the scope of the duty imposed on employers by article 5(1), even allowing for the exception in article 5(4).
It accepted that article 5(1) did not impose an absolute duty on employers to ensure a safe working environment, but at the very least it implied that “the employer remained responsible for the consequences of any event detrimental to the health and safety occurring in his undertaking.”
The Commission argued that the effect of section 2(1) was to let employers off the hook, if they could show that “the adoption of measures which make it possible to ensure the safety and health of workers would have been grossly disproportionate in terms of money, time or trouble when balanced against the relevant risk”. This, it said, was in conflict with the wording in the preamble to the directive.
The UK, however, disagreed, pointing out that there was nothing in the directive that imposed a “no-fault” liability on employers, which was effectively what the Commission was arguing.
ECJ decision
And the ECJ agreed with the UK that article 5(1) did not impose a no-fault liability. Rather, it said that it “simply embodies the general duty of safety to which the employer is subject, without specifying any form of liability”.
Pointing to the legislative history of the directive, the ECJ said it showed that the clause was only inserted because of the problems that member states with common law systems would have had in formulating a duty “to ensure safety in absolute terms”.
On top of that, the Court said that the Commission had not been able to show that the only way of meeting the directive’s objectives was by setting up a no-fault liability regime for employers.
As for the extent of the duty imposed on employers by the directive, the ECJ said the onus was on the Commission to identify the UK’s alleged infringements. As it had not established how section 2(1) of the HSWA limits (contrary to article 5(1) of the directive), the duty of employers to ensure the safety and health of workers, its complaint could not succeed.