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High court dismisses safety case

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LUXEMBOURG—The European Court of Justice has ruled that the United Kingdom's "reasonably practicable" clause in its health and safety law is acceptable, removing the threat of tougher health and safety laws for the country's employers.

The court examined a claim made by the European Commission that U.K. health and safety law does not correctly implement a European Council framework directive (89/391/EEC) on measures to encourage improvements in workplace health and safety.

The ECJ last month dismissed the case and ordered the commission to pay the U.K. government's costs.

The case centered upon a key phrase in the U.K. Health and Safety at Work Act 1974.

Duty of employers

That act states that it is the duty of employers to ensure "so far as is reasonably practicable" the health, safety and welfare of staff. The health and safety framework directive, however, states that employers have "a duty to ensure the health and safety of workers in every aspect related to work."

But it also contains a clause that states that the directive "shall not restrict the option of member states to provide for the exclusion of, or the limitation of, 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."

The European Commission argued that the United Kingdom's use of the "reasonably practicable" phrase amounted to defective implementation of the directive.

An oral hearing of the case took place in September 2006, and an advocate general at the European Court in January delivered an opinion favorable to the United Kingdom. And in June the ECJ dismissed the case.

The London-based Institution of Occupational Safety and Health welcomed the ECJ ruling, in which it said "common sense prevailed."

"In terms of health and safety law, the clause 'so far as is reasonably practicable' means that employers don't have to take measures that are grossly disproportionate to the risk. In turn, the U.K. courts are able to objectively assess whether employers have done everything 'reasonably practicable' to manage the risk. The effectiveness of this system is supported by the U.K.'s health and safety record, which is one of the best in Europe," said Lisa Fowlie, president of IOSH.

"Had the challenge against the United Kingdom been successful, employers in this country could have been treated more severely than those elsewhere in Europe. Although, other member states' laws are written in absolute terms, the courts in those countries can apply flexibility and proportionality in their judgments," she added in a statement.

The U.K. Health and Safety Commission also welcomed the decision.

"We continue to believe that the right way forward is a proportionate and risk-based approach protecting employees and others effectively, while allowing common sense to be applied when deciding on what protective measures to adopt," said Bill Callaghan, chair of the HSC, in a statement.

Green light

The European Trade Union Confederation said it believed the ruling might go against European workers' "inalienable right to protection of their health and safety at work."

Walter Cerfeda, ETUC confederal secretary, said in a statement that the ruling could be "a sign of encouragement from the European court to states who want to cut back European legislation on workers' rights."