European (EU) Law: Neverland Case

Neverland is a fictional Member State. It has a publicly-owned railway system, but stations are managed by a private company called NeverRail. Jack works for NeverRail as a customer enquiry clerk. One Monday, Jack’s manager informs him that, due to staff shortages, he will be required to clean a station forecourt the following week using a four-wheeled self-propelled vehicle equipped with integrated brushes and polishers. Jack says he would not be comfortable using such a vehicle without appropriate training. His manager replies that the forecourt urgently needs to be cleaned and that no-one is available to train Jack in operating the vehicle. He is given an instruction booklet and told that it is ‘all pretty self-explanatory’. Jack is threatened with disciplinary proceedings if he refuses to use the vehicle.

Five years ago, the European Union adopted a (fictitious) directive on safety in the workplace (‘the Directive’). The deadline for implementing the Directive has expired. Article 6 of the Directive provides as follows:

‘Where an employee is required to use self-propelled machinery as part of his or her work, the employer must ensure that the employee receives comprehensive and thorough training beforehand.’

Neverland has not adopted any legislation with the specific purpose of giving effect to the Directive. However, section 8 of a seventy-year-old Neverland statute states that ’employers must ensure that their employees receive suitable instruction in the use of any equipment they are required to operate in the course of their employment.’ There is some case law of the lower Neverland courts holding that section 8 applies only to the use of equipment which employees are required to operate on a regular basis and that, in considering how much instruction should be provided, employers are entitled to assume common sense and a basic level of technical competence on the part of their employees. This case law has not been considered by the higher Neverland courts.

To what extent, if at all, might the Directive assist Jack in his dispute with NeverRail? (In answering this question, you are not asked to consider any remedy Jack might have against Neverland.)

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