Additional memorandum submitted by APIL
Re: Work of the Health and Safety Executive
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
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
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