So far as is reasonably practicable: are employers about to face a tougher test? Brent McDonald reports
In Commission v UK: C-127/05 [2007] All ER (D) 126 (Jun) the European Court of Justice (ECJ) rejected an attempt by the Commission to declare the use of “so far as is reasonably practicable” (SFAIRP) clauses in health and safety regulations incompatible with Directive 89/391/EEC, commonly known as the Framework Directive.
The ECJ decided that the Commission had failed to put forward a sufficiently clear and evidence-based argument to justify this step. However, the matter may not end there thanks to Advocate General Mengozzi’s opinion to the court. Although the opinion supported the dismissal of the Commission’s case, it states that SFAIRP clauses which allow employers a defence based on more than technical infeasibility are contrary to the purpose of the Framework Directive, and hence incompatible.
If that is correct, unless SFAIRP clauses are applied differently by the courts in future, litigants may be forced to rely directly on regulations as against emanations of the state and/or decide to litigate against the UK for a
