BUT WHAT ABOUT EUROPE? EUROPEAN LAW AND EMPLOYER’S LIABILITY AFTER THE ERRA

There has been some debate about the effect of European law upon the changes made by the ERRA 2013. I have to say that it is difficult to come to a concluded view.   These matters will start to become relevant very soon. There are a number of steps I recommend to practitioners:

(1) Read the useful section on this point in Redgraves at [2.40] onwards.

(2) Look at the decision in Commission of the European Communities –v- United Kingdom  (C-127/05); [2007] All ER (EC) 986 which can be found at

http://curia.europa.eu/juris/document/document.jsf?text=&docid=60993&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=751213

THE FACTS

The European Commission was challenging the “reasonably practicable” defence in the Regulations that had been introduced to implement the directives on the health and safety of workers.

THE FINDINGS

The Court rejected an argument that the “reasonably practicable” defence represented a failure to implement the Directive.

“39 The Court must therefore first examine whether Article 5(1) of Directive 89/391 requires Member States, as the Commission submits, to impose no-fault liability on employers for all accidents which occur in the workplace.

40 In that regard, it should be noted that, under Article 5(1) of Directive 89/391, ‘[t]he employer shall have a duty to ensure the safety and health of workers in every aspect related to the work’.

41 That provision makes the employer subject to the duty to ensure that workers have a safe working environment, the meaning of which is specified in Articles 6 to 12 of Directive 89/391 and by various individual directives which lay down the preventive measures to be adopted in certain specific industrial sectors.

42 On the other hand, it cannot be asserted that the employer should be subject to no‑fault liability by reason merely of Article 5(1) of Directive 89/391. That provision simply embodies the general duty of safety to which the employer is subject, without specifying any form of liability.

43 The Commission submits that its suggested interpretation of Article 5 is borne out by the legislative history of Directive 89/391. It maintains that since the request of the United Kingdom and Irish delegations for the disputed clause to be incorporated in the definition of the employer’s responsibilities was expressly rejected in the course of the discussions of the working party set up by the Council of the European Union, it can accordingly be accepted that there is no-fault liability on the part of the employer.

44 That argument cannot, however, be upheld. It is apparent from the legislative history of Directive 89/391, and in particular from the joint statement by the Council and the Commission recorded in the minutes of the Council meeting of 12 June 1989, that the insertion of such a clause was suggested in order to resolve the problems that formulating the employer’s duty to ensure safety in absolute terms would have raised in the common‑law systems, bearing in mind the obligation on the courts concerned to interpret written law literally.

45 Against that background, the refusal to insert a clause comparable to the disputed clause in Article 5(1) of Directive 89/391 cannot suffice to justify an interpretation of that provision to the effect that the employer is subject to a form of no-fault liability in the event of accident.”

The Court further went on to say that:

50 Lastly, it must be held that the Commission has not shown in what respect the objective of Directive 89/391, consisting in ‘the introduction of measures to encourage improvements in the safety and health of workers at work’, cannot be attained by means other than the setting up of a no-fault liability regime for employers.

THE GOVERNMENT’S ARGUMENTS

It is interesting to record the arguments put forward by the Government.

“As regards the employer’s liability, the United Kingdom points out that nothing in Directive 89/391, in particular in Article 5(1) thereof, requires employers to be subject to no-fault liability. First of all, that provision simply provides that the employer has a duty to ensure the safety and health of workers, but does not also lay down an obligation to provide compensation for damage suffered as a result of workplace accidents. Secondly, Directive 89/391 leaves the Member States free to decide on the form of liability, civil or criminal, which should be imposed on employers. Thirdly, the question whether it should be the individual employers, the general category of employers or society as a whole who meets the costs of workplace accidents, is also left to the Member States.

30 The United Kingdom takes the view that its system of ‘automatic’ criminal liability on all employers, subject to the ‘reasonably practicable’ defence, which is narrowly defined, serves to give effect to Article 5(1) of Directive 89/391.

31 According to that Member State, an employer may escape that form of liability only by showing that he has done everything reasonably practicable to avoid risks to the safety and health of workers. Accordingly, he is required to show that there was a gross disproportion between, on the one hand, the risk to the safety and health of workers and, on the other hand, the sacrifice, whether in money, time or trouble that the adoption of the measures required to prevent that risk from arising would have involved and that the risk itself was insignificant in relation to that sacrifice.

32 The United Kingdom adds that the application of the disputed clause by the national courts involves a purely objective assessment of the circumstances, which excludes any consideration of the employer’s financial position.

33 The United Kingdom also submits that the HSW Act serves to guarantee an effective system of prevention, as a criminal sanction has a greater deterrent effect than civil liability resulting in the payment of damages, against which employers are able to take out insurance cover. That effectiveness is also shown by the statistics, which reveal that the United Kingdom has long been one of the Member States recording the lowest number of workplace accidents.

34 Furthermore, the United Kingdom states that it has established compensation for victims of workplace accidents on the basis of the social security system. The employer is also liable for damage resulting from a failure on his part to discharge the duty of care in relation to workers provided for under the common law.”

NO OBLIGATION IN THE DIRECTIVES TO PROVIDE FOR COMPENSATION

It Is this part of the argument – that the Directives do not impose a requirement to provide for compensation – that could give rise to difficulties in arguing that civil liability for breach should continue, even though the ERRA has changed the principle of civil liability being imposed for breach.

THE ADVOCATE GENERAL’S OPINION

The situation is set out more clearly in the Advocate General’s opinion at   http://curia.europa.eu/juris/document/document.jsf?text=&docid=65129&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=751213

There is it made clear that the Directives do not impose strict liability

“117. Contrary to the Commission’s contention, that provision does not therefore substantiate, either if read in isolation or in conjunction with Article 5(1), the contention that the framework directive was designed to introduce strict liability on the part of the employer.

118. Although defined in particularly broad terms, the employer’s liability resulting from Article 5(1) and (4) of that directive is in fact liability based on fault, which flows from a failure to discharge the duty to ensure safety devolving on the employer.”

Further implementation of the Directives did not necessarily mean that civil liability had to attach, or be identical criminal liability.

“123. In its statement of defence, the United Kingdom pointed out on several occasions that failure to discharge the obligations which section 2 of the HSW Act imposes on employers is subject to criminal sanctions. According to the United Kingdom, the national legislature’s decision to opt for criminal liability where the employer is in breach of his duties of prevention ensures a more efficient system of protection and is entirely compatible with the provisions of the framework directive, since the latter does not require Member States to provide for a specific form of liability in order to deal with such offences. However, the United Kingdom points out that, if approved by the Court, the interpretation of Article 5(1) and (4) of the framework directive which the Commission proposes would require the United Kingdom legislature to abandon that option, since there can be no question of strict criminal liability.

124. In that connection, I consider it necessary to make clear that, as well as not requiring Member States to adopt a specific form of liability, as the United Kingdom was right to point out, the framework directive does not require that the different forms of liability – civil, criminal or other forms of liability – envisaged by each national legal system should be identical in terms of their extent.

125. In other words, while, pursuant to the framework directive, Member States are required to provide for a system of employer liability consistent with the model that emerges from the provisions of that directive, they remain free both to choose the form of that liability and to provide for other forms of liability which may be less extensive than that laid down by those provisions. For example, in my view, it would be perfectly legitimate for a Member State to provide for civil liability in cases where the employer is in breach of the general duty to ensure safety, as interpreted above, and, at the same time, for a form of criminal liability which is limited, for instance, to breaches of the more specific requirements of the legislation on the prevention of workplace accidents.

126. It follows that the clause at issue in these proceedings would be perfectly legitimate were it to be concluded that, while it provides for employer liability which is less extensive than must be regarded as necessary under the framework directive, it restricts that liability in the criminal field only, and that United Kingdom legislation provides for a form of civil liability for employers the extent of which is entirely commensurate with the liability regime which the framework directive seeks to achieve.

127. It is true that, under the system in force in the United Kingdom, employers are subject to civil liability only in relation to breaches of the specific obligations placed on them by particular provisions of law but not in relation to the failure to discharge the general duty to ensure safety set out in section 2(1) of the HSW Act. (12) However, it appears from the case-file that, in common law, the employer will be subject to a form of civil liability if he is in breach of his duty of care to his workers.”

WHAT CONCLUSIONS CAN BE DRAWN?

I find it difficult to assert, as other have, that the answer to a claimant’s problems lies in the Directives and an action based on vertical or horizontal effect of European legislation.  The problem is that the Directive does not impose a duty on a government to impose civil liability for breach.  Nor does it impose any obligation that provides for strict liability.

THE CURRENT POSITION

However the Directives and the Regulations cannot be ignored.   Every litigator must be aware of the statement of Minister Viscount Younger in the debate by the House of Lords on 22 April 2013:

“We acknowledge that this reform will involve changes in the way that health and safety-related claims for compensation are brought and run before the courts. However, to be clear and to avoid any misunderstanding that may have arisen, this measure does not undermine core health and safety standards. The Government are committed to maintaining and building on the UK’s strong health and safety record. The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employers in future civil claims for negligence”.

I strongly suspect that this statement was not made by accident, but on legal advice. To forestall any argument that there has been a diminution in health and safety. The Government concedes that the Regulations are relevant to the standards to be considered.  This was a statement made with the European Court clearly in mind.

FUTURE STRATEGY

It would be prudent to to plead the Ministerial Statement by way of Reply to any suggestion in a Defence that the Regulations can be ignored or are irrelevant to issues of  civil liability (Being careful not to make the mistake of pleading an action based on statutory duty – which would give the Defendant an an easy argument. The claimant should not  not plead breach of statutory duty but that breach of the Regulations is negligent.  The burden will be on the defendant to show that they did comply with the Regulations. The Government statement makes it impossible for a defendant to argue that the Regulations, and Directives, are irrelevant.

USEFUL LINKS

The Advocate General’s opinion is at

http://curia.europa.eu/juris/document/document.jsf?text=&docid=65129&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=751213

The Court decision is at

http://curia.europa.eu/juris/document/document.jsf?text=&docid=60993&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=751213

RELATED POSTS

https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/09/30/the-remaining-importance-of-health-and-safety-regulations-after-1st-october-2013/

https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/10/05/interesting-on-line-discussion-on-effect-of-erra/

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One comment

  1. Reblogged this on jamierclarke and commented:
    excellent analysis from Gordon Exall, that takes the Eu/ERRA debate several steps further

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