What is So Far As Is Reasonably Practicable (SFAIRP)?

Jason Morley explains..............

This question is pretty much the cornerstone of UK health and Safety Law, with the Health & Safety at Work Act (HSWA) and many statutory instruments including it in their text. Safety practitioners will explain it as a balance between the benefits to be gained (in terms of risk reduction) versus the cost (in time, money and inconvenience). This qualified duty is the standard against what the UK ’s companies base the health and safety decisions.

Why then does there seem little fuss that SFAIRP is under threat?

In March 2005, the European Commission (EC) started formal infraction proceedings against the UK Government for alleged under implementation of the EC’s health and safety Framework Directive (Council Directive 89/391/EEC of 12th June 1989). In essence the EC is challenging the use of the qualifier “so far as is reasonably practicable” (SFAIRP) in the UK ’s transposition of the duty on employers to ensure the health and safety of their workers (article 5(1) of the Directive).

The oral hearing took place at the European Court Justice (ECJ), in Luxembourg , on 13 September 2006 . At the hearing, counsel for the UK (a senior QC) and for the EC put forward their case. The UK appears to have stated that our safety record speaks for itself in comparison with other member states that do not use the qualified duty. The EC pressed the fact that the UK had produced a lower level of protection for UK employees than the EU Community required, the latter only recognizing Practical and Absolute Duties.

The UK ministers from the DWP, to which the HSC/E are linked are confident that the ECJ will find in it’s favour. Many legal professionals I have spoken to do not quite so sure. Their opinion is based on the fact that the UK has indeed introduced a qualified judgment into UK law not in the directive, this has for many years offered a way out for Employers when defending legal cases.

So, what if the ruling goes against the UK ? What of the costs to rectify this under-implementation? Our Civil Law is based on previous decisions from legal cases, these would be made obsolete. The Statutes would need to be re-thought, re-written and re-learned. Then the Employers of the UK would have to re-assess their control measures to ensure that they were complying with our new laws, this because their defence of “it was too expensive” goes out of the window.

All in all it sounds like a safety practitioner’s charter; with the potential to upset the business community for years. This is why the DWP are very reluctant to publish advanced figures on costs even though they have no doubt speculated on, if not calculated.

The ECJ’s Advocate General will issue an opinion. This is likely to be delivered around 8-9 weeks after the hearing date. The final judgement is not due until spring 2007.

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