Duty of Care in UK Law
It might seem a bit strange to be talking about UK law in the context of CLP, which is an over-riding EU regulation which is supposed to supersede national legislation.
However, the concept of Duty of Care, which arises from Section 6 of the 1974 Health and Safety at Work Act, affects most, if not all, forms of safety legislation in the UK, and can be seen as the underpinning principle of health and safety in this country. The HSE website has a link to an up to date version of the Act here: http://www.hse.gov.uk/legislation/hswa.htm . An extract of Section 6 is provided here for reference: HSWA Section 6 up to date at 9-11-2017 .
Strictly speaking, Duty of Care refers to worker safety, but it can also be considered to apply to consumers as well. The principle of Duty of Care is that you should ensure that you have done everything you can to protect workers (and consumers), including passing on new information about hazards of chemicals as soon as they come to your attention.
This is in contrast to the CLP regulation, where new information, such as updated Harmonised Classifications, are not legally required to be implemented until a date in the future, which can be many months away. Similarly, there is an expectation within REACH that new CLP classification information arising from a REACH dossier, will be implemented at some undefined future date in the supply chain.
The tension between Duty of Care and various EU regulations has never really been discussed or resolved in the UK, and although it may disappear when we leave under Brexit, it still exists up until the point we leave.
For anyone classifying, labelling or writing SDSs, this tension can be very real – should I update a label and SDS now, or wait until next year when I am forced to change under EU law. Or, the EU law only permits putting P statement X on the label, but the information I want to get across is better described by P statements Y and Z.
In these circumstances, as well as CLP, REACH, or other EU legislation, it can be helpful to think about Duty of Care, and what the effects of your actions would be on the recipient of your product. If it is a case of following the strict letter of the law, or the principle of Duty of Care, then sometimes the latter has to take precedence over the former, at least for products sold in the UK.
If you find yourself in this kind of dilemma, it can be helpful to discuss the issue with the UK REACH and CLP Helpdesk through their email at UKREACHCA@hse.gov.uk , but ultimately the decision and responsibility will lie with your company, and with the you as the individual responsible for classifying, labelling and writing SDSs.
This discussion is not meant to worry you so much that you don’t want to do your job any more, but to make you aware that there can be other laws to be considered as well as the ones you are actively trying to comply with.
Important note – personal liability under Duty of Care
As someone responsible for classification, labelling and SDSs, you can (in theory) be held personally responsible for not carrying out your job properly, and even prosecuted. This is why it’s so important to do the best job you can, and keep records of how and why you arrive at classification, labelling and SDS content decisions.
However, in certain situations, you may wish to classify, label or and/or provide information on a substance or mixture which is contradicted by a manager or employer. In this situation, you would not be prosecuted, as the concept of the “mens rea”, the “directing mind”, applies, so that the person who over-rules you would become liable.
If you are in this unfortunate situation, we recommend that you should keep full records of your own actions, including explaining why you wish to classify a product as you do, and also the fact that your advice was ignored or contradicted, in case anyone tries to shift blame back onto you.