Posted By Gordon Thelwell Hello all, i saw this article in The Yorkshire Post last week and thought it would interest you. The question i would like to pose is do any of you have an alternative to the 'reasonably practical' test? Here's the article: Britain in EU dock over job health and safety laws Jobs at risk as judges check rules EXCLUSIVE Simon McGee Political Editor THE European Commission is taking legal action against the Government over British health and safety legislation which it says is not strict enough. The controversial move could leave- thousands-of .businesses at risk, increase paperwork and has put the Government at logger heads with Europe. Ministers and business leaders who are determined to fight the action insist the 1974 Health and Safety Act which states employers are responsible for staff "so far as it is reasonably practicable" - is the cornerstone of how the' British workplace operates. They also stress that Britain not only copes with a huge amount of employment red tape, but that the country has one of the best health and safety records in Europe. But European officials argue that the "reasonably practicable" qualification should be deleted and legal action has been lodged. Written ahd oral submissions will be made to international judges over the coming year and a full judgment is expected towards the end of 2007. Civil servants have privately called the Commission's demand "dangerous" with implications for every workplace in Britain. Last night, the Federation of Small Businesses (FSB) said thousands of businesses would be at risk if employers were expected to provide blanket protection no matter the cost or risk. Concerns have also been raised that police forces - as well as other employers who are unable to absolutely guarantee the health, safety and welfare of all their staff - could even be forced to prevent employees from doing anything potentially dangerous. FSB health and safety spokeswoman Mary Broughton said: "The central phrase in the 1974 Act 'so far as is reasonably practicable' is important to small businesses. "It gives flexibility to small firms to allow them to take proportionate steps to protect their workforce and, by extension, their business. ,"Good employers know that their workforce is their most vital resource and take all appropriate steps to safeguard their staff. "We fervently hope that the wording in the 1974 Act is upheld. "The current \ situation must be maintained to prevent potentially devastating costs being placed on businesses to take precautions that common sense would suggest are unnecessary. "Any change would spell closure for some firms meaning that instead of protecting people's jobs it would put them at great risk." The proposal would also "undoubtedly increase the paperwork burden on small businesses still further," the FSB said. Police Federation chairman Jan Berry said the current balance worked well for both employer and officers and did not need changing. "Different circumstances require different levels of protection and it is important that the safety of all officers and members of the public is taken into consideration. But there is no evidence that the current wording of the Health and Safety Act under debate has an adverse effect on the safety of officers." , The basis of the legal action is that British law is incompatible with EU law, in particular an EU directive from 1989 maintaining that employers are responsible "in relation to all events adverse to the health and safety of his workers". A summary of the action stresses that commissions opposed to the British model which "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". That "balancing test", applied by the British courts when considering cases, is unreasonable and too weak, the Commission says. The Department of Work and Pensions (DWP), the Whitehall department leading on the issue, is content with the British test. A spokeswoman said: "The fact is that our system has served us very well and as a result we've got one of the best health and safety records in Europe. "We're taking a very strong stance on this and are fighting hard." Euro sceptic EU expert Lee Rotherham, a critic of the Commission's legal action, added: "What this adds up to is managers having to keep their employees wrapped in cotton wool. "Anything which could hamper the ability of frontline emergency services doing their job must be a concern to everybody." A Commission spokeswoman refused to comment last night, saying it would be sub judice to make any comments in the interim.

Posted By Robert K Lewis For those interested this is the Journal Reference (Case C-127/05) (2005/C 143/26) (Language of the case: English) An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 21 March 2005 by the Commission of the European Communities, represented by M.-J. Jonczy and N. Yerrell, of its Legal Service. The Commission claims that the Court should: 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. Pleas in law and main arguments The Commission's complaint is based upon Section 2(1) of the Health and Safety at Work Act 1974 which states that it shall be the duty of every employer to ensure the health, safety and welfare of all his employees at work ‘so far as is reasonable practicable’. The Commission considers that this qualification placed upon the employers' duty is incompatible with Articles 5(1) and 5(4) of Directive 89/391/EEC (‘the Directive’). 11.6.2005 C 143/18 Official Journal of the European Union EN It is going to be an interesting time for us all if they succeed Bob

Posted By Robert K Lewis Arran As you will note from my post above this is not an article 6 case but rather under article 5, and so it seems there is another hurdle to cross. Also it won't just be HASAWA to change if the commission is successful -it could be everything. My gut feeling is that we thought this battle was won back in the early 1990s but it was ignored rather than resolved and so is now coming back to bite us. Interestingly the changes to stricter liabilty would only affect the duties to employee aspects of the legislation so RP can continue as a valid tool for decision making for those not in the employers employment. Bob

Posted By Phil Grace Think that we have to be careful...... Reasonably practicable is NOT a judicial botch job as it has been described by one previous contributer. Judges do not make criminal law only interpret it and clarify its meaning when cases come before them. It is the civil law that is "made up" by the Judges but reasonably practicable is part of the criminal law. The term appears in sec 2(1) of the Health and Safety at Work etc Act 1974.

Posted By Robert K Lewis I suppose that Lord Robens background in coal mining is the reason why the Civil "DoC" has ended up in the 74 Act. Mines were still until very recently dealt with as Master-Servant relationships in court and this affected the specific mining and quarying legislation. It was the model he chose and it may be that a different Chair of the commission would have come with a strict liability type wording as seen in the FA and derivative regulations, albeit wiith some form of goal setting objective. One could envisage a piece of legislation without the use of "reasonable"! If the case is lost then we will be in that position. I think a lot of other implementation work will go on hold. Am I concerned? To be honest I am not sure. The goal setting and associated tests have not brought in the anticipated reverse of accidents. The downturn is more to do, perhaps, with societal pressure rather than the type of legislation. Bob

Posted By Sean Fraser Time to dip the toe in again . . . Any change to the law is one thing - all very good on a theoretical level, but as usual the proof is in the pudding . . . how well it is enforced. At the moment, the test of reasonableness is applied, but is it really being done in the court? No. It is done when the enforcing authority, in this case the HSE, looks at the situation and decides: 1) Is there a breach in law? 2) If yes, what is the most appropriate enforcement tool (IN, PN or prosecution)? 3) If prosecution, is there sufficient evidence to prove and win a case? Most of the cases reported in the media (including the trade press) involved an incident where injury resulted. The test of "were reasonably practicable measures taken" is usually cursory, and the answer is obviously "no" - otherwise injury would not have resulted. this filter would apply regardless, and the enforcement authority has only so much resource to carry out it's function which is unlikely to be increased. Those of us doing our best under difficult conditions will continue to do our best and will consider the HSE to be our friend for advice and assistance. Those who cut corners or simply fail to respect the legal requirements will consider the HSE to be their enemy and will be running the risk of getting caught but in reality will only face the conseqeunces when it all goes horribly wrong (and sometimes not even then). Net result - no real change.

Posted By Robert K Lewis Yes John We don't have many call centres with flying ladles, sinter plants and coke ovens do we? Chris I agree that RP is becoming a nonentity a lot of the time so perhaps there is need now to ditch it and see if strict liability coupled to a defined set of targets that must be achieved could make a difference. Just to be Devil's advocate for the moment perhaps the structure has become outdated and HASAWA needs a comfortable retirement. The world 30 years ago was a very different place workwise and we seem to have lost some messages that were important. But then I am an old fogey who has been around far too long and seen most of the mistakes being repeated day after day as if they were totally new. Bob

Posted By Jonathan Breeze Yes Bob, but that's just part of the human condition isn't it? "Those who cannot remember the past are condemned to repeat it." - George Santayana Like Chris, I don't personally think that HASAWA 74 is a sacred document, if it can be improved, then why not? Out of interest do any forum members know how other EU countries apply Article 5(1)?

Posted By Arran Linton - Smith Rob, A few years ago I recall an article in the SHP which identified that in reality the RA principal did not work as judges were happier explaining to juries the meaning of reasonableness rather than of reasonably practicable. I would agree with you that the HASAWA is ready for a comfortable retirement, particularly as much of its detail has now been updated and is contained within various Statutory Instruments, such as the Management of H&S at Work Regulations 1999 Perhaps a new Corporate Killing Bill could eventually become the framework act for our H&S legislation?

Posted By Robert K Lewis Adrian You are getting a bit muddled with Criminal, Civil and Common Law terminology and this is making your argument hard to follow. HASAWA is about Criminal Law in the UK just as it is in the other EU states. The root of the differences are in the gladiatorial approach of the UK, where the evidence is contested, as opposed to the inquisitorial approach on the continent where it is "investigated by the judiciary. In the UK judges do not create law, only parliament is able to do this, but they do interpret and apply previous precedent under the common law. Their understanding of reasonably practicable has actually altered very little over the last 4 decades. What has happened though is that they are more prepared to allow that knowledge and techniques now provide an ability to reach higher standards with effectively lower comparative costs. The test in any civil claim is not likely to change from that of reasonableness. Breach of Statutory Duty claims by an employee would potentially be more straightforward. "PERHAPS" as always being the rider. Bob

Posted By Jonathan Breeze This is still bugging me so I just checked the Irish legislation to see how they get round it. Lo and behold, there it is in S. 8(1) of the Safety, Health & Welfare at Work Act 2005: "Every employer shall ensure, SO FAR AS IS REASONABLY PRACTICABLE, the safety, health and welfare at work of his or her employees." So it looks like they might shortly run into the same problem unless their courts interpret 'reasonably practicable' differently (I have no experience of the Irish legal system but figure it must be similar to the UK for historical reasons - though I could just be displaying my ignorance here). This leaves me thinking that the case must be political grandstanding by Messrs Jonczy and Yerrell. Either that or a sinister plot to force us to change our Legal system to a European style Inquisitorial one. Help me... I hate it when I sound like a Daily Mail editorial!

Posted By Robert K Lewis Adrian The two primary divisions of law that concern us are Common Law and Statute law. Offences may be criminal or civil but in essence must fall into one of these two divisions. My problem is the assertion that Judges make statutory law - this is the perogative of Parliament. The history of Common Law shows that it was judge made and its roots were with the travelling circuit judges moving around the country on behalf of the King administering judgements on what they understood to be an equitable basis, using previous decisions of themselves and previous courts to guide them in their decision. This still exists and is most visible in personal injury claims. On the matter of statute law Judges must follow the Act of Interpretation but even this can still require a final decision by judges in superior courts as to meaning. I still think judges have served society well by holding a line against political pressure to read into words meanings that are not really present. The current Anti-Terroriam Bill and debate over the word glorification highlights some of the problems that judges can be given through inadequate parliamentary review and revision Bob

Posted By J Knight Hi Aidan, Thanks for responding to my very oblique question in such an informative way? I was trying to ask how European legal systems allowed cost to be taken into account while still complying with EU directives, and allowing for the very different basis of the Napoleonic Code vis a vis Common Law. You may have answered this; obviously they don't apply safety at any cost, and now I think I understand how. Jonathon; not surprised about Irish law as Eire is in the Common Law bloc so will tend to use similar phrases as the UK, John

Posted By Adrian Watson Bob, I didn't say that Judges made statute law! Statute law is made through primary or secondary legislation, by parliament or with the authority of parliament by ministers. The common law is made by Judges, primarily though the discovery of legal rules in case law. However, Judges can discover (make) law, which may relate to either civil or criminal matters. Regards Adrian

Posted By Adrian Watson Merv, Plague is Yersinia perstis (pasturela pestis was its old name). Gas gangrene is caused by Clostridium tenani and not Clostridium welchii; this causes food poisoning. Regards Adrian. PS Keep up the good work - and have a glass for me!