Brexit or no Brexit, EU directives can still have an impact

Wetherell v Student Loans Co Ltd

The claimant brought a claim for personal injury alleging tinnitus caused by a defective headset provided by his employers. However, the claim was not brought in negligence, both parties agreed that such a claim would fail. Instead, the claimant alleged that his employer was in breach of a duty imposed by Article 3(1) of Directive 2009/104/EC “the article”. The directive was still applicable in 2014 when the events giving rise to the claim occurred. The claimant appealed to the Court of Appeal; the claim having been struck out in the lower courts.

Article 3(1) reads as follows:

“The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.

In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking or establishment, in particular at the workplace, for the safety and health of the workers, and any additional hazards posed by the use of the work equipment in question.”

The claimant argued that the article was “directly effective” and therefore “vertically” enforceable against an emanation of the state. Put another way, the article created a right which the claimant could rely upon, and that domestic courts would have to protect, irrespective of domestic legislation that sought to implement the same article.

The Court of Appeal had to satisfy itself in respect of two questions:

• Was the article capable of giving rise to liability (does it have “direct effect”)?

• Was the Student Loan Company (SLC) an emanation of the state? If the article was capable of giving rise to liability, could it be enforced against the SLC?

Direct Effect

In respect of direct effect, the court had to consider: 

• Whether the article imposed an obligation and upon whom.

• Whether the content of the obligation was identifiable in the sense of being sufficiently clear and unconditional.

The test is cumulative and both arms had to be satisfied for the article to have direct effect.

The court found that the article met the test in that it contained a clear and unconditional duty imposed upon employers specifically for the benefit of employees. However, the court also made clear that it was expressing no conclusion about any provision other than the article itself.

As the test set by the court suggests, the language used in the article and supporting legislation was a key consideration. For example, the article describes a relationship between employer and employee, without the need for further state involvement, which indicates that a freestanding right had been created.

It should be noted that the directive was effectively implemented in domestic law as the Provision and Use of Work Equipment Regulations 1998. However, it was settled ground between the parties that this did not prevent the directive being relied upon as a direct source of rights.

Emanation of the State

The court decided that the lower courts had applied the incorrect test in respect in determining whether the SCL was an emanation of the state.  The case was remitted back to the county court to determine this and to deal with the substantive claim.

Relevance of Wetherell to Disease Claims

Wetherell is potentially important because it suggests that, despite the removal of civil liability for breach of health and safety regulations, claimants may still be able to rely directly on certain EU Directives to claim damages against an emanation of the state.

 For disease litigation, this could provide an alternative route where a negligence claim is difficult to prove, particularly in cases involving historical workplace exposure pre-Brexit - which is a common feature in most industrial disease litigation. While the substantive claim in Wetherall was a claim for tinnitus cause by workplace equipment, the principle may extend to other occupational diseases arising from failures to comply with EU-derived health and safety obligations.

 Its practical impact is likely to be the greatest in claims against public-sector employers or publicly controlled bodies. The decision is unlikely to assist claimants pursuing claims against private sector employers.