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FL Memo Ltd © 2007 |
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Employment Memo 2007 Newsletter Issue 2 |
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RECENT CASES |
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Health and safety Scope of protection 1. ECJ decision ¶4800 Under the Health and Safety at Work Act 1974, employers have a statutory duty to ensure the health and safety of their workers whilst at work “so far as is reasonably practicable” (s 2 HSWA 1974). This clause has been criticised, with the European Commission arguing that the European General Health and Safety Directive (EC Directive 1989/39) introduces a system of “no fault” liability, which is to say that it requires all member states to introduce legislation under which the employer is objectively liable for the health of his workers, so that even in situations where an accident was not the fault of the employer, the employer will still be liable under the law. Following an Opinion of the Attorney General (see update to ¶4860), which found against the Commission, the European Court of Justice has agreed with the Attorney General’s Opinion and has held that the Health and Safety at Work Act, with its emphasis on the balancing of interests, is compatible with European law. In particular, the ECJ found that the Health and Safety Directive does not introduce no fault liability. Accordingly, there shall be no need to amend the UK legislation. Commission of the European Communities v United Kingdom [2007] ECJ Case C-127/05 2. Status of Codes of Practice ¶4800 Employers are required to comply with certain statutory obligations, as set out in the Health and Safety at Work etc Act 1974, various Regulations and Codes of Practice. In a case concerning the practice of the courts in implementing the Codes of Practice, the Court of Appeal considered an employee injured in a fall at work. Her employer was a care home. The workplace had slippery vinyl floors and several of the residents were prone to incontinence. The relevant legislative protection placed an absolute duty on employers to ensure that the floors of workplaces are properly constructed. Different, lesser, duties exist to remove from a floor a temporary hazard. Before the High Court, the employee attempted to bring the evidence of Codes of Practice published by the Health and Safety Commission, which, she argued, clarified the extent of the duty. The Court refused. The Court of Appeal held that the High Court had been wrong to refuse this evidence. A Code of Practice which was designed to give practical guidance to employers as to how to comply with their duties under statutory regulations could be taken as providing some assistance as to interpretation. Such guidance always had to be treated with caution. It might be wrong. It did not carry the authority of a judicial decision. But if relevant, as it was here, it should be considered. Ellis v Bristol City Council [2007] EWCA Civ 685
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