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TRAVEL RISK MANAGEMENT 2015
3. Transposition of European Legislation in the United Kingdom
In the UK prior to the adoption of the Framework Directive, there existed comprehensive framework legislation on health and safety in the form of the Health & Safety at Work etc Act 1974 ("HSWA") which applies in Great Britain. Separate but parallel legislation exists in Northern Ireland. This legislation is not only concerned with health and safety in the employment relationship but also imposes duties on employers and self employed persons in respect of the health and safety of the employees of other employers, and that of the public at large, insofar as they may be affected by the conduct of the employer's or self employed person's undertaking. This existing legislation, supplemented by health and safety regulations made under it, has been used to transpose the Framework Directive and its Daughter Directives.
Under section 2(1) HSWA every employer is placed under a duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
Under section 2(2) of the Act, this general duty extends, in particular, to requesting (subject to the qualification of reasonable practicality) the provision and maintenance of safe plant and systems of work, safe systems for the handling, storage and transport of articles and substances, necessary information, instruction, training and supervision and safe workplaces and working environments etc. This duty is enforceable by criminal proceedings in the event of breach, and liability is strict, i.e. does not depend on proof of intention, or even any fault beyond the mere proof of breach of duty. Proceedings will be brought by the regulatory authority having jurisdiction over the premises concerned, either the national health and safety regulator (the HSE) or the relevant local authority.
Other general duties under HSWA cover duties to non employees, duties as regards the safety of premises etc.
More specific duties are placed on employers by health and safety regulations made under HSWA. For example, Regulation 3 Management of Health & Safety at Work Regulations 1999 requires employers and self employed persons to make suitable and sufficient assessments of the risks to the health and safety of employees at work and of risks to the health and safety of non employees who may be affected by the conduct of their undertakings.
ffffffffA further EU Directive of relevance to the topic of this paper is Directive 96/71/ EC covering the posting of workers in the framework of provision of services, which relates to the posting of workers for a limited period to carry out work in the territory of a Member State other than the state in which he normally works. The Directive requires Member States to ensure that undertakings guarantee posted employees terms and conditions relating, inter alia, to health and safety and hygiene at work which are laid down in the Member State where the work is carried out. The Directive therefore requires Member States to ensure that the contractual entitlements of workers are supplemented, where necessary, to meet the relevant standards.
The Framework Directive and its "Daughter" Directives have been transposed by national implementing legislation in all Member States of the EU. In most Member States the primary focus of the implementing legislation is a regulatory framework enforceable by administrative or in some cases criminal sanctions. This may be supplemented by specific legislation on civil obligations owed by employers to their employees, but as indicated above civil obligations in respect of health and safety are likely to be imposed on employers by the general law in any event.
In some Member States the legislation giving effect to the Framework Directive and the "Daughter Directives" insofar as the criminal or regulatory laws of the Member State is concerned, have effect only within the national territory of the state concerned. An incident occurring wholly outside that territory will not then result in proceedings in that country. However in other Member States, which have different rules and traditions regulating the territorial application of national legislation, the relevant implementing legislation may be interpreted as also covering acts or omissions abroad.
It may be mentioned that the criminal and regulatory laws of some jurisdictions outside the EU also have that effect. A particularly clear example is that of Canada, where the duty of care imposed on employers under the criminal code applies extra- territorially, as well as on Canadian territory. A similar position may obtain under the laws of Australia, notably as regards entities subject to the Commonwealth (i.e. the federal, as opposed to state) occupational safety statute.
Civil obligations of employers to their employees are likely to apply regardless of the territorial location of the employee at any given time.