Health and safety at work

The large Title in the TFEU called “social policy” is substantially about what we might otherwise call labour law and equalities legislation. In terms of impact on health, it operates through several different mechanisms.

3.3.1 Occupational health and safety

Among the EU’s list of social policy objectives, the first objective is “improvement in particular of the working environment to protect workers’ health and safety”.¹¹³ The powers provided are broad in scope but quite specific in their nature, being

limited to “directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.”¹¹⁴

The health and safety at work powers of the treaties described above have given rise to an extensive set of requirements to protect health at work. As well as the overall framework directive on safety and health at work, there is a wide range of detailed and sectoral provisions. Two European agencies – the European Agency for Safety and Health at Work and the European Foundation for Living and Working Conditions – also support the implementation of European action in this area. As described in section 3.3.3, this includes a directive on sharps (e.g.

safe handling of needles and other products that can pose a hazard to workers)¹¹⁵ specifically focused on workers in the health sector, although many of the other provisions are also highly relevant to healthcare workers.¹¹⁶

Finally, the Council formally adopted the Regulation establishing the European Labour Authority on June 13, 2019.This new Authority will ensure that Union

112 Ibid., p. 17.

113 TFEU, Article 153, paragraph 1(a).

114 TFEU, Article 153, paragraph 2(b).

115 Council of the European Union (2010). Directive 2010/32/EU on prevention from sharp injuries in the hospital and healthcare sector of 10 May 2010 implementing the framework agreement on prevention from sharp injuries in the hospital and healthcare sector concluded by HOSPEEM and EPSU. Luxembourg:

Publications Office of the European Union.

116 European Commission (2011). Occupational health and safety risks in the healthcare sector. Luxembourg:

Publications Office of the European Union.

rules on labour mobility are enforced in a fair, simple and effective way. More specifically, the Labour Authority will be responsible for supporting Member States in facilitating access to information for individuals and employers about their rights and obligations in the areas of labour mobility and social security coordination ; for supporting operational cooperation between national authorities in the cross-border enforcement of relevant Union law, including facilitating joint inspections; and for providing mediation and facilitate solutions in cases of disputes between national authorities.¹¹⁷

3.3.2 Working Time Directive

As part of the drive towards the integrated market launched by the Single European Act, there was concern that this should not be a “race to the bottom”

for workers, with countries competing to become more competitive by lowering employment standards. Reflecting this, in 1990 the Commission proposed setting minimum standards for certain aspects of working time, in particular a minimum of 11 hours of rest per 24-hour period and specific protection for night workers and shift workers.¹¹⁸ The directive was controversial, at least in the United Kingdom, which unsuccessfully tried to contest the original directive before the CJEU.¹¹⁹ Health ministries also had mixed feelings about the proposal.

On the one hand, protecting workers against long hours would help to ensure good health; on the other hand, health systems were themselves dependent on historical practices of long hours being worked by junior doctors. The directive as agreed in 1993 reflected this,¹²⁰ excluding doctors in training from these protections and allowing more general exceptions to be made for hospitals (as well as for some other sectors such as transport and sea fishing).

This exemption was intended to give time to find solutions to also protect these excluded categories of workers. The situation of doctors in training was given particular attention, with work for the Commission identifying a range of options that Member States could take,¹²¹ including reorganizing work patterns, having some routine clinical work and administrative work undertaken by other staff such as senior nurses, improving retention of doctors in training who currently leave career grades, recruiting more junior doctors and sharing the workload

117 European Commission. “Statement. European Labour Authority ready to start working in October as decision is taken on new seat.” Luxembourg, 13 June 2019

118 Commission of the European Communities (1990). Proposal for a Council directive concerning certain aspects of the organization of working time (COM(90)317 final). Luxembourg: Publications Office of the European Union.

119 European Court of Justice. Case C-84/94 United Kingdom v Council of the European Union.

120 Council of the European Union (1993). Council Directive 93/104/EC concerning certain aspects of the organization of working time. Official Journal, L 307:18–24.

121 Cambridge Policy Consultants. Business impact assessment – working time: excluded sectors: supplementary report: doctors in training. Cambridge: Cambridge Policy Consultants. Available at: http://ec.europa.eu/

social/BlobServlet?docid=2434&langid=en, accessed 4 July 2014.

with other facilities, including in the private sector. Accordingly, in 1998 the Commission proposed extending the directive to cover excluded sectors including doctors in training. The updated directive agreed on this basis in 2000¹²² did extend the original directive to cover doctors in training but provided a specific further transitional period of up to eight years with higher limits on working time for doctors in training (an average of 58 hours a week, progressively falling to 52 hours a week). This again was in order to take account of the specific difficulties of health system organization, in particular put forward by the United Kingdom.

These directives were then further amended and consolidated in 2003, with broadly the same provisions although with a cap on weekly working hours of 48 hours. The directive included similar derogations for longer working hours for doctors in training as the 2000 directive. It also allowed Member States to provide for exceptions allowing employees to choose to work longer hours if they wished, and for managers to be exempted from the cap.

Given the size of changes brought by the directive in comparison with the historical practice of doctors working well over 100 hours a week, it is perhaps not surprising that some doctors and managers were critical of the provisions to reduce working hours, arguing that these would reduce the scope for clinical training, and discounting the benefits to patients from fewer fatigue-related errors and to the long-term health of doctors themselves.¹²³ Indeed, it has taken considerable time and debate to arrive at models of care organization that reconcile these different objectives, and the issue is still debated. However, the criticisms that the EU working time legislation had been developed without taking account of its impact on health systems is more difficult to understand, given that this had been a central part of the European debate since the original directive in 1993, as is the general absence of engagement of health professionals from this debate until the stage of implementation of the 2003 directive in the mid-2000s. This seems to be another example where the wider health community did not understand or engage with the impact of Europe on health – perhaps because the formal basis of the working time directives was health and safety at work, rather than the article on public health, and discussion largely took place in employment-related forums rather than the Health Council, for example.

3.3.3 Social partners in EU law

As mentioned above, social policy also has a unique additional legislative route, which is by direct negotiation and agreement between management and union

122 European Parliament and Council (2000). Directive 2000/34/EC amending Council Directive 93/104/

EC concerning certain aspects of the organization of working time to cover sectors and activities excluded from that Directive. Official Journal, L 195:41–4.

123 Mossialos E et al. (eds). (2010). Health systems governance in Europe: the role of EU law and policy.

Cambridge: Cambridge University Press.

representatives (aka social partners); these agreements can then be implemented into normal EU law by a Commission proposal and Council decision.¹²⁴ The only use of this procedure in healthcare was the directive on sharps, such as needles, which are a major health and safety issue in healthcare (see section 3.3.1).

3.3.4 Equalities and nondiscrimination

One key area where there are strong EU measures is that of nondiscrimination.

Here the EU has strong powers to prohibit discrimination on six grounds – gender, racial or ethnic origin, religion or belief, disability, age, and sexual orientation¹²⁵ – and it has put in place wide-ranging legislation to combat discrimination on these grounds. The EU is also a signatory to the United Nations Convention on the Rights of Persons with Disabilities.¹²⁶ The United Nations Convention, intriguingly, defines people with disabilities as those “who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.¹²⁷ People with chronic conditions could clearly be considered to fall within this definition (e.g. people needing dialysis, the provision of which prevents them from being able to keep a full-time job). However, patient groups have been reluctant to claim the label of disability, despite the strong EU legal protections that it brings – ill-health as such is not a protected ground of discrimination.