Under a proposed EU directive, construction employers could face hefty claims from outdoor workers if they fail to protect them from the effects of the sun

Summertime is when projects can be pushed forward, and for those that have been delayed, the better weather improves their chances of hitting deadlines. But a proposed European Union directive may make sunny skies less welcome in the future.

The Optical Radiation Directive is currently being discussed by the European parliament. Its aim is to protect workers from the effect of natural and artificial optical radiation.

Exposure to strong sunlight would, under the current drafting, be categorised as natural radiation.

In its present form, the directive calls for employers with staff working outdoors to make regular risk assessments of the levels of 鈥渟un radiation鈥� to which their employees could be exposed. These assessments may call for meteorological data gathering systems to measure and record the strength of sunlight. Employers would then be obliged to devise and implement an action plan to minimise health and safety risks from sun radiation.

The construction and engineering sector is one of the most prominent 鈥渙utdoor working鈥� industries. There are thousands of construction workers in the UK who will on a daily basis be exposed, at varying levels, to sun radiation. If the directive takes effect in the UK, the industry will have to pay close attention to its requirements, at least if natural sources of radiation remain within its ambit.

Representative bodies such as the Forum of Private Business have expressed concern about the directive. They believe that many businesses will not have the resources or the expertise to undertake the requisite scientific analysis and that the level of information required by the directive is unrealistic. Smaller businesses in particular may view the regulations as economically burdensome.

The FPB has also expressed its concern that the directive could expose employers to claims based on diseases caused by exposure to natural sources of radiation. The risk of a claim would presumably increase if an employer was found to have not taken the necessary protective measures. Claims of this nature can cost tens of thousands of pounds to defend and manage. Insurance would assist in many instances, but a plethora of claims for diseases said to stem from natural radiation may drive up premiums. Such fears may of course prove to be unfounded, but it is perhaps understandable why they have been prompted by the directive.

Lobbying of the European parliament may result in the directive being amended so that it only applies to artificial radiation from sources such as X-rays, lasers and blast furnaces. There is, however, no guarantee that these representations will be taken on board.

Those who take the view that the directive is an example of EU eccentricity may wish to note that the UK Health and Safety Executive has already published a leaflet called 鈥淜eep Your Top On鈥� which highlights health risks from working in the sun. The leaflet provides guidance and practical advice for workers who will be exposed to sun radiation on a regular, and long-term, basis. It warns against the dangers of exposing unprotected skin to sunlight and advocates the usual protections such as sun cream, hats and T-shirts. The advice in the leaflet is said to represent best practice only; it is not yet compulsory. It seems likely, however, that the tone of the guidance notes would change if the optical radiation directive becomes law in its current form.

To some, the EU鈥檚 proposals may seem far fetched and impractical. It is nevertheless easy to forget that in the not too distant past there was no recognition of a host of present health and safety concerns, such as asbestos. Health and safety legislation has evolved as science recognises new or previously hidden dangers to workers. Perhaps, then, we should not be too surprised if legislation does eventually emerge to guard against the dangers of natural radiation. Exactly how this should be implemented in a competitive and cost conscious business environment will be challenging.

In the meantime, and as the Australians would say, remember to 鈥渟lip, slop, slap鈥� this summer.

For more information please contact Citigate SMARTS:

Graham Dixon 鈥� 0141 229 7635, email: graham.dixon@citigatesmarts.co.uk
Karen Morrison 鈥� 0141 229 7634, email: karen.morrison@citigatesmarts.co.uk

Scott Johnston is a director in the construction and engineering unit of solicitor McGrigors

Topics