11.6.2005   

EN

Official Journal of the European Union

C 143/18

1.

declare that in restricting the duty upon employers to ensure the safety and health of workers in every aspect related to the work to a duty to do this ‘so far as is reasonably practicable’, the United Kingdom has failed to fulfil its obligations under Articles 5(1) and 5(4) of Council Directive 89/391/EEC of 12th June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (1);

2.

order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

i)

Article 5(1) imposes responsibility upon the employer in relation to all events adverse to the health and safety of his workers unless the very special circumstances of Article 5(4) can be invoked.

ii)

This is confirmed inter alia by the legislative history of the Directive and the express rejection of the inclusion of a ‘so far as is reasonable practicable’ clause by the Community legislator.

iii)

By way of contrast, the UK's legislation (as interpreted by the national courts) permits an employer to escape responsibility if he can prove that the sacrifice involved in taking further measures, whether in money, time or trouble, would be grossly disproportionate to the risk.

iv)

This ‘balancing test’ is apparently applied by the national courts in all cases and not only in the exceptional situations falling within Article 5(4) of the Directive.

v)

Further, the assessment of what is ‘reasonably practicable’ permits the incorporation of considerations of the cost (in financial terms) to the employer, contrary to Article 5(4) of the Directive as read in light of its 13th recital.