Select Committee on Work and Pensions Written Evidence

Additional memorandum submitted by APIL

  Re:  Work of the Health and Safety Executive and Commission

  During my oral evidence before you on 23rd January, I promised to write to the Committee to provide numerous examples where European Union Directives have, far from being "gold plated" in fact been diluted.

  I list a sample of these below:

  1.  The Noise at Work Directive requires (Article 5) that the risks arising from exposure to noise shall be eliminated at their source or reduced to a minimum. The phrase "reduced to a minimum" had by the time the Regulations came to be made to implement the article, been the subject of consideration by the Courts in the UK and the Courts had held that this form of words imposed a strict standard. However, the regulations do not introduce that standard at all but instead merely require that the noise is "eliminated at source, or where this is not reasonably practicable, reduced to as lower level as is reasonably practicable".

  2.  Under the Workplace Directive, a workplace is required to have floors which are "not slippery" (Article 3 and Annex I para 9.1) and no mention is made of any qualification to that standard. Yet under the Workplace (Health, Safety and Welfare) Regulations 1992, regulation 12, intended to implement that Directive the floor must be kept free from substances which may cause someone to slip only to the extent that this is "reasonably practicable".

  3.  Article 3 of the Manual Handling Directive 1990 states that an employer shall take appropriate measures to avoid the need for manual handling or to reduce the risks of manual handling and, in Article 4, in relation to workstations states, that where "manual handling cannot be avoided the employers shall organise workstations in such a way as to make such handling as safe and as healthy as possible". The corresponding duties introduced into UK law in the Manual Handling Operations Regulations 1992 are all, once again, qualified by the standard of reasonable practicability.

  4.  Regulation 11 of the Provision and Use of Work Equipment Regulations 1998 provides for protection from moving parts of machines subject to a standard of practicability which both fails to implement paragraph 2.8 Annex 1 of the Directive (which imposes an absolute duty) and is a diminution of the previous UK standards which were an absolute standard under both section 14 of the Factories Act 1961 and section 17 of the Offices Shops and Railways Act 1963. This arguably puts the UK in breach of the European Directive as well as its daughter Directive.

  5.  The same formulas appear in like context in both the Control of Vibration at Work Regulations and in the Control of Substances Hazardous to Health Regulations. In each case the obligations are lowered to a standard of reasonable practicability, which is a concept foreign to the European Directives themselves.

  6.  Annex 1 paragraph 17 of the Workplace Directive requires that pregnant women and nursing mothers should have facilities to lie down, whereas Regulation 25 of the Workplace Regulations requires merely facilities to "rest".

  7.  The Management of Health & Safety at Work Regulations 1999, Regulation 3 (6), confer an exemption from possessing a risk assessment on employers with fewer than five employees. This exemption is not found in the originating European Health and Safety Directive 1989.

  Further examples can, of course, be provided if the Committee requests.

  In the circumstances it seems clear beyond all doubt that EU Directives are transposed into UK law with a measure of dilution rather than gold plating.

  If I am able to help the Committee in any other way at any stage in the future please do not hesitate to contact me.

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