Health & Safety in the EU – a risk assessment
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As we approach the Referendum on the EU we are being asked to weigh up the merits of our continued membership. One area which has received less media attention has been the EU's involvement in health and safety regulation.
Health and Safety regulation - a help or hindrance
The EU Framework Directive 89/391 [12 June 1989] sought to create minimum standards of health and safety for all workers amongst member states. The Directive was binding and member states were obliged to transpose them into national law by no later than 1992.
The UK Government implemented the Framework Directive in 1992 in the form of six sets of statutory regulations made under the Health & Safety at Work Act 1974 which later became known as the ‘Six Pack’. You are probably familiar with most of them:
- Management of Health & Safety at Work Regulations
- Provision and Use of Work Equipment Regulations
- Manual Handling Operations Regulations
- Workplace (Health, Safety and Welfare) Regulations
- Personal Protective Equipment at Work Regulations
- The Health & Safety (Display Screen Equipment) Regulations
Between 1997 and 2009 a further 65 health and safety regulations were introduced in the UK of which 41 originated in the EU.
In 2011 Professor Lőfstedt was commissioned by the Government to conduct an independent review of health and safety legislation. He commented that: ‘the regulations are broadly accepted to have been an important contributory factor [in the reduction of workplace injuries and fatalities] with the evidence showing that legislation is the primary driver for organisations to initiate changes to improve management of health and safety.
Risk assessment - the new legal benchmark
The Framework Directive introduced the principle of risk assessment as the key element to managing health and safety in the workplace. The Management of Health & Safety at Work Regulations 1992 [later revised and updated in 1999] were the principal vehicle for implementing this approach by establishing a duty on employers to undertake a ‘suitable and sufficient’ risk assessment to protect those who might be affected by work activity.
Risk assessment has since been recognised by the court as a starting point for determining the nature and extent of an employer’s duty when adjudicating on the issue of breach of statutory duty and negligence in a civil claim for personal injury as illustrated below.
Ms Laytona Allison v London Underground Limited  EWCA Civ 71
Ms Allison was a tube train driver employed by London Underground. She developed tenosynovitis as a consequence of operating a traction brake controller with her right thumb.
The controller had been re-designed with a chamfered end on the recommendation of two other drivers. No expert advice had been sought as to the suitability of this change and no specific instructions had been provided to drivers as to how they should operate the new controller and where to position their thumb. This was despite there being historical evidence of musculo-skeletal disorders amongst drivers in the operation of similar equipment.
Ms Allison applied pressure to the chamfered end with her right thumb for prolonged periods during the shift and developed tenosynovitis of the flexor pollicis longus tendon. She was unable to return to her work as a driver and brought a claim against the London Underground on the grounds that they had failed to provide adequate training in the use of the new controller.
Liability was denied and the case eventually proceeded to the Court of Appeal who found in favour of Ms Allison. In her Judgment Lady Justice Smith stated:
'..the test for the adequacy of training for the purposes of health and safety is what training was needed in the light of what the employer ought to have known about the risks arising from the activities of his business.
What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.
Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action.'
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