Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland

The Commission of the European Communities (Commission) brought an action against the United Kingdom for a declaration that provisions of section 2(1) of the UK Health and Safety at Work etc. Act 1974 (Act), read in conjunction with sections 33 and 47 of that Act, permitted the United Kingdom to negate its obligations under Article 5(1) and (4) of Council Directive 89/391/EEC (Directive) to enact measures that encouraged improvements in the safety and health of workers. Specifically, the Commission argued that the Act’s provision limiting liability of employers to that which was “practicable” permitted a balancing test for liability that provided protection to employers beyond the exception provided in Article 5(4), which excluded employer responsibility in cases of unusual and unforeseeable circumstances beyond the employers’ control. The Commission therefore concluded that the United Kingdom’s legislation was not in compliance with it obligations under the Directive.

The United Kingdom maintained that it had adequately implemented Article 5(1), in conjunction with 5(4), of the Directive into national law. In its defense, the United Kingdom claimed that allowing an employer to escape liability where that employer can show that it had done everything reasonably practicable to avoid risks to the safety and health of workers remained within the purview of the Directive. The Commission nevertheless asserted that the exception in Article 5(4) was not meant to provide for derogations based on such a “reasonableness test.”

The court considered that the United Kingdom had fulfilled its obligations under Article 5(1) and (4) of Directive 89-391, and the Commission’s action was dismissed. The meaning of the qualification of Section 2(1) of the United Kingdom’s Act, limiting an employer’s duty to ensure the safety and health of workers based on reasonably practicable efforts to prevent harm, depended on the actual content of that duty. Ultimately, the Commission failed to clarify how that duty infringed the Directive beyond reliance on the Commission’s own presumptions. Accordingly, the Commission did not sufficiently demonstrate that the United Kingdom’s legislation constituted a failure to fulfill its obligations under the Directive.

"53. In that regard, although the Commission submits that the duty on the employer is absolute, it expressly acknowledges that that duty does not imply that the employer is required to ensure a zero-risk working environment. In its reply, the Commission also acknowledges that, as a result of carrying out a risk assessment, the employer may conclude that the risks are so small that no preventive measures are necessary. In those circumstances, the key point, according to the Commission, is that the employer would remain responsible if an accident were to occur."

"55. Although the disputed clause lays down a proviso to the employer’s duty to ensure the safety and health of workers in every aspect related to the work as regards what is ’reasonably practicable’, the significance of the proviso depends on the precise content of that duty. With regard to the arguments put forward by the Commission set out in paragraph 53 of this judgment, the Commission has not sufficiently clarified its interpretation of the content of that duty, apart from civil or criminal liability in the event of accident, and irrespective of the obligations stemming from Article 5(2) and (3) and Articles 6 to 12 of Directive 89/391. Consequently, the Commission has not established in what way the disputed clause, considered in the light of the national case-law cited by both parties, infringes Article 5(1) and (4) of Directive 89/391."