SWD(2013) 202 final
Public consultation on the new EU occupational safety and health policy framework
Responses due 26/08/2013
The document confidently asserts that a central framework on H&S has been essential. The usual harmonisation/leadership argument. Injury accident rates have shown an improvement, it says, but no-one quite knows how to measure them. The impression is that some nations would do far less on H&S were it not for the centralised approach. But, what can be done about SMEs? Has anyone done anything about nano materials, endocrine disruptors and EMFs?
The document focuses on the ‘soft’ issues of stress, MSD and ageing. BUT makes a special case for preventable cancer.
It also confirms that H&S has been adopted by the wider public health agenda:
‘With regard to public health policy, the degree of coherence between public health and health and safety at work is high. Measures were taken in the areas of tobacco in the workplace and mental health. Health promotion issues were integrated into the general OSH framework, although this was less successfully done with regard to aspects of mental ill-health, especially in terms of integrating people with mental health problems into the workplace.’
This adoption may seem an appropriate way to deal with mental health, unexplained pains and the extra comfort required by older workers. But does it have legal force?
At a first approximation it makes sense to co-ordinate action on occupational injury events, but as yet there is no case at all for harmonised action on the ‘soft’ issues – MSDs, stress and the ageing workforce. That the EU is focussing on these is evidence of a political as opposed evidence and logic based approach. The first aim of a new EU strategy would be to re-build from scratch an appropriate method for EU policy generation.
The new framework should adopt an explicit aim of circumscribing existing regulation and future regulation so that it only retains ‘27 status’ if it can be shown that the target problem, e.g. declining visual acuity, and how to fix it is actually a health and safety at work issue and that the same cause and solution are actually applicable with equal effectiveness and efficiency across 27 states. Otherwise, 27 level interventions are by definition a distortion of the market. Harmonisation would be an illusion. Injury accidents are much less subject to distortion, so start with those.
The UK is particularly badly aligned with EU27 thinking on the ‘soft’ issues. This is because of the common law compensation system which applies in the UK, and Ireland. In this system, the correct baseline from which to judge causation, prevention and mitigation is that of the normal population, not that of the perfectly healthy population. The EU approach adopts the latter standard and 25 members have institutions in place to support that choice. The two are not compatible, except at a political level and perhaps, when considering occupational injury events.
Thus far, HSE research has also failed to address this fundamental incompatibility, leading to excessive prevention standards and double standards.
The new Enterprise Act promises to provide a mechanism by which the common law is re-asserted in the UK. The EU 25 could adopt the UK common law standards approach.
 And hence – duty of care standard.