Occupational Health Law. Diana Kloss
works. A choice of law other than that of England, Scotland or Northern Ireland cannot deprive an employee of his rights under the law of Great Britain if he habitually works in this country (Contracts (Applicable Law) Act 1990 and the EU Rome 1 Regulation).
An employer based in Britain who sends employees abroad on temporary postings will have to take reasonable care for their health and safety. In Palfrey v. ARC Offshore Ltd (2001) an oil engineer contracted malaria in West Africa and subsequently died. The High Court held that the employer was liable for not taking reasonable steps to inform and protect him from such hazards.
Where a worker injured abroad seeks compensation from his British employer, who is unwilling to defend the case here, the UK court might decide to refuse to entertain the case because the foreign court is more appropriate. In one case of an industrial accident which occurred in Scotland, the English court decided that the injured workman must sue in the Scottish court, because all the witnesses were in Scotland (MacShannon v. Rockware Glass (1978)). But in Connelly v. RTZ (1997), an English worker who had been injured whilst working in Namibia for a British company was permitted to sue in the English court because legal aid was available here.
Following the Connelly case, a number of workers who were resident in South Africa brought actions in the English courts for compensation for the damage caused to them by working in the asbestos mines in South Africa for a local subsidiary of a British parent company, Cape plc. More than 3000 claimants eventually became involved. The employer argued that England was not an appropriate forum, because the claimants were all South Africans, spoke little English, had suffered the damage (mainly mesothelioma and asbestosis) in South Africa, and because all the evidence was in South Africa. The claimants submitted that without legal aid (which was not available to them in South Africa) they could not practically continue with their suits. In England there was also the possibility of using conditional fee arrangements with the lawyers. The House of Lords held that, though South Africa was the natural forum, this was a case where that was outweighed by the interests of justice. At the time of writing, millions of pounds have been paid in settlements to the South African workers (Lubbe v. Cape plc (2000)).
The law of the European Union
There are a number of European treaties: principally, the European Atomic Energy Community (Euratom) Treaty, the Treaty of Rome, the Maastricht Treaty, the Treaty of Amsterdam, the Nice Treaty and the Treaty of Lisbon. The European Coal and Steel Community expired in 2002. The treaty which founded the European Economic Community, the Treaty of Rome, in 1958 sought to create a common market between the Member States by providing for the free movement of goods, persons, services and capital and restraining anti‐competitive measures like monopolies and restrictive practices. It was incorporated into United Kingdom law by the European Communities Act 1972. The following 28 countries were members of the Union in 2018: Belgium, France, Italy, Luxembourg, Netherlands, Germany, Denmark, Eire, United Kingdom, Greece, Spain, Portugal, Austria, Finland, Sweden, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Bulgaria, Romania and Croatia. The Rome treaty was substantially amended by the Single European Act (1986) and more recently by the Treaty on European Union agreed at Maastricht in 1992. Further important changes were made in 1999 in the Treaty of Amsterdam, and in the Treaty of Nice in 2003. A proposal for a written constitution for the European Union caused dissension and was rejected. However, the Treaty of Lisbon, which came into force in December 2009 after its ratification by all the Member States, created a new office of President of the European Council, increased the powers of the European Parliament and made the Union’s Charter of Fundamental Rights legally binding. The effect of the treaty is to create the Union as a separate legal entity.
The power to make new laws is given to the European Commission – which proposes legislation, and to the Council of Ministers. Each Member State sends one Minister to the Council meetings. The directly elected European Parliament at first had a mainly consultative and debating function, and its powers still fall short of a full legislative role, though the Maastricht treaty gave it a power of veto in limited areas. Today, the European Parliament exercises substantial powers of a legislative, budgetary and supervisory nature. The strengthening of a co‐decision (now the ordinary legislative) procedure in the Treaties of Amsterdam and Nice obliges the Council to submit proposed legislation to the Parliament on three occasions. Where amendments are made by the Parliament, the Council can reject or modify them only by unanimous vote. This procedure was extended in 2009 by the Treaty of Lisbon (Treaty on the Functioning of the European Union) and now applies to most legislative acts.
The bureaucracy of the EU is the European Commission which is situated in Brussels. The judicial power is conferred on the Court of Justice of the European Union in Luxembourg. Each Member State has one judge on the court. Its principal task is to interpret the treaties and secondary legislation made with their authority. A Court of First Instance, now known as the General Court, was created in 1988 to relieve the burden on the European Court. It deals inter alia with cases brought by individuals against EU institutions and decisions concerning the EU trade mark. Judicial panels, known as specialised courts, may be set up by the Council to hear certain classes of action at first instance. An EU Civil Service Tribunal hears staff cases. Where the European Court makes a ruling on EU law, the courts of Member States must recognise and enforce it, and there is no appeal from its decisions.
Secondary legislation takes the form of regulations, directives and decisions. Regulations are mandatory. They have the force of law throughout the EU without the need to be ratified by the legislatures of the Member States. An important example of a regulation in the health and safety and environment field is REACH, which is discussed in Chapter 5. Directives are ‘binding as to the result to be achieved’, but leave the choice of method to the states concerned. They therefore require domestic implementing legislation. The Consumer Protection Act 1987 was passed to give effect to the principles laid down in the Product Liability Directive. It is not unknown for states to drag their feet. More than once the United Kingdom has been taken to the European Court by the Commission for failure to implement a directive. In Marshall v. Southampton HA (1986), the ECJ held that an individual employed by a government could sue that government in the national court under the provisions of an unimplemented directive as though it had been implemented, a privilege not available to non‐government employees. Employment in the National Health Service was held to be government service. This right extends to employees of local authorities, universities, police forces, firefighters, in fact all those employed by public authorities. The European Court further developed the law in Francovich v. Italian Republic (1992) when it held that an individual may in some circumstances sue a government for damages for failure to enact a directive within the specified period.
Decisions are rulings given by the Commission in individual cases and may be addressed to a state, an organisation or an individual. They are binding only on the individual addressed. Recommendations are persuasive, but not legally binding. Salvatore Grimaldi was born in Italy, but had worked for a long period in mining and construction in Belgium. He was diagnosed as suffering from an osteoarticular or angioneurotic impairment of the hand (Dupuytren’s contracture), which he claimed was an occupational disease caused by the use of a pneumatic drill. This was not a prescribed disease under Belgian law, and Grimaldi was refused social security compensation. He appealed to the European Court.
The European Commission has made recommendations, most recently in 2003, setting out a ‘European schedule of occupational disease’, including ‘illness for over‐exertion of the peritendonous tissue’, and calling on Member States to introduce legislation granting compensation to those workers affected by such diseases and also to those able to prove that their disease was caused by work but unable to take advantage of domestic law because the disease was not prescribed. This recommendation places emphasis on the need for Member States to make their statistics on occupational diseases compatible with the European schedule, so that information on the causative agent or factor, the medical diagnosis and the gender of the patient is available for each case of occupational disease. The European Court held that recommendations could not confer rights directly on individuals, but