Article 3(1) Work Equipment Directive: Directly Effective Worker Right and Disjunctive “Emanation of the State” Test (Farrell)

Case: Wetherell v Student Loans Company Ltd [2026] EWCA Civ 645
Court: Court of Appeal (Civil Division) (Baker LJ, Green LJ, Lewis LJ)
Date: 22 May 2026
Appeal from: High Court (King’s Bench Division), Eyre J, [2024] EWHC 1443 (KB)

1. Introduction

The appellant (a former call handler) brought a personal injury claim alleging tinnitus caused by a defective telephone headset provided by his former employer, Student Loans Company Limited (“SLC”). It was accepted that a negligence claim would fail, so the claim was advanced instead on EU law: an alleged breach of Article 3(1) of Directive 2009/104/EC (the “Directive”) on the use of work equipment.

The appeal raised two core issues:

  1. Liability / direct effect: whether Article 3(1) is sufficiently clear, precise and unconditional to confer an enforceable right (with damages as an effective remedy) in domestic proceedings.
  2. Vertical enforceability: whether SLC is an “emanation of the state” such that the Directive can be enforced against it (vertical direct effect).

The alleged breach pre-dated the UK’s departure from the EU; the parties proceeded on the basis that EU law as at 2014 applied.

2. Summary of the Judgment

  • Article 3(1) is directly effective: it imposes a clear, unqualified duty of result on employers to ensure work equipment is suitable and can be used “without impairment” to workers’ safety or health.
  • Remedies: once a directly effective right is engaged, national courts must provide an effective remedy; in a case like this, that will generally be damages.
  • Emanation-of-state test misstated below: the High Court applied a conjunctive (two-limb) Foster test; following Farrell v Whitty, the conditions are disjunctive (authority/control or special powers).
  • Disposition: the appeal was allowed and the case remitted to the County Court to apply the correct emanation-of-state test on a proper factual foundation.

3. Analysis

3.1 Legislative and policy context

The court anchored Article 3(1) within the EU occupational safety framework:

  • Article 118a EEC (now reflected in subsequent treaty arrangements) mandated directives setting minimum requirements for worker health and safety.
  • Council Directive 89/391/EEC (the “Framework Directive”) set the overarching approach: strong minimum protection, employer responsibility, and the language of “ensure”.
  • Directive 2009/104/EC (work equipment) operationalised minimum standards for equipment safety, with repeated “ensure” duties and an “impossibility” carve-out in Article 3(2).

UK implementation was via the Health and Safety at Work Act 1974 and the Provision and Use of Work Equipment Regulations 1998. However, section 69 Enterprise and Regulatory Reform Act 2013 removed the general civil cause of action for breach of health and safety regulations (formerly under section 47 HASAWA 1974), creating “daylight” between (i) negligence and (ii) a strict/duty-of-result EU law claim if brought vertically against the state or an emanation.

3.2 Precedents cited and their role

(a) Direct effect: identifying enforceable EU obligations

The court treated the classic line of authority as establishing that direct effect depends on the presence of an identifiable obligation that is sufficiently clear and unconditional:

  • Van Gend en Loos (Case 26/62 N.V. Algemene Transport-en Expeditie Onderneming van Gend & Loos v. Nederlandse administratie der belastingen): the foundation for “direct effect” and the “clear and unconditional” criterion.
  • Becker (Case 8/81 Becker v. Finanzamt Munster-Innenstadt): direct effect of directives where provisions are “unconditional and sufficiently precise”, preventing a Member State relying on its own failure to implement.
  • Francovich (Francovich v. Italian Republic Joined Cases C-6/90 and C-9/90): articulated (i) when directive provisions can be relied on and (ii) the distinct-but-related state liability principle for failure to implement.
  • Dillenkofer (Dillenkofer v. Federal Republic of Germany): reconciled the “Becker-type” and “Francovich-type” routes, treating their conditions as substantively aligned in non-transposition cases.
  • Three Rivers (Three Rivers District Council and others v The Governors and Company of the Bank of England [2000] UKHL 33): Lord Hope’s synthesis was applied: the “critical questions” are whether the directive entails the grant of rights to individuals and whether the content of those rights is identifiable.
  • MG (Case C-792/22 MG): relied on by SLC to stress Member State procedural autonomy; the Court of Appeal read it as reaffirming effectiveness/equivalence constraints and the necessity of effective remedies.

(b) Emanation of the state: correcting the “Foster” misreading

The second major strand of authority concerned vertical enforceability against bodies that are not obviously central government:

  • Foster v British Gas plc [1991] 2 AC 306 and Foster CJEU (Case C-188/89 Foster v British Gas): treated below as imposing a two-limb cumulative test (public service under state control and special powers).
  • Farrell v Whitty (Case C-413/15 Farrell v Whitty): clarified that paragraph 20 of Foster was not a universal conjunctive test; rather, paragraph 18 indicates an either/or approach: a body is within vertical effect if it is subject to the authority/control of the State or has special powers beyond normal rules between individuals.
  • MIB v Lewis [2019] EWCA Civ 909: cited for the domestic confirmation that Farrell makes the Foster conditions disjunctive.

(c) Other cited authorities (contextual but influential)

  • R(Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57: used to describe student loans as a “form of state benefit” and SLC as an arm’s-length administrator, informing the factual/legal characterisation exercise.
  • Commission v United Kingdom (C-127/05, EU:C:2007:338): referenced in MG passages for the proposition that Framework Directive Article 5 embodies a general duty but does not itself specify a liability model.
  • Fairchild v Glenhaven [2002] UKHL 22 and Blatch v Archer (1774) 1 Cowp 63: deployed on remission directions, emphasising evidential expectations where relevant facts are peculiarly within the defendant’s control.

3.3 Legal reasoning

(1) Why Article 3(1) was held directly effective (Issue I)

The court’s reasoning was textual and structural:

  • Duty-holder and beneficiary are explicit: Article 3(1) imposes obligations on “the employer” for the protection of “workers”.
  • Duty of result, not conduct: the employer must “ensure” equipment is suitable and may be used “without impairment” to safety or health. The obligation is not framed by “reasonable practicability” or economic balancing.
  • Article 3(2) does not undermine clarity: it operates as a limited “impossibility” carve-out that defines the boundary of the primary unqualified duty.
  • Freestanding employer–employee norm: the right does not depend on further state action for it to operate between employer and worker.
  • Effective remedy follows: once the right is enforceable in national court, domestic courts must provide an effective remedy; in personal injury-type claims, that will typically be damages.

SLC’s submissions (including reliance on Member State discretion and the mixed domestic scheme of criminal enforcement plus negligence) were rejected as inconsistent with the Directive’s hard-edged minimum protections and the EU law requirement of effective judicial protection.

(2) Why the emanation issue was remitted (Issue II)

The High Court applied a conjunctive “two-limb” Foster test and dismissed the claim because SLC supposedly lacked “special powers”. The Court of Appeal held that this was legally flawed in light of Farrell v Whitty: the “authority/control” and “special powers” criteria are alternatives, not cumulative hurdles.

Although the High Court had found (and there was no respondent’s notice challenging the finding) that SLC satisfied the “public service under state control” aspect, the Court of Appeal considered it procedurally fair and practically necessary to remit: the wrong test had shaped the evidence and argument below, and the correct application may require a more complete agreed factual statement about SLC’s statutory foundation and operational relationship with HMRC/HMT.

3.4 Impact

  • Re-opens a strict-liability route (pre-Brexit facts) against public/arm’s-length employers: where negligence is weak and domestic statutory civil liability has been curtailed, claimants may attempt to plead directly effective directives—but only vertically.
  • Clarifies that Article 3(1) is enforceable as a right in national courts: the judgment provides appellate confirmation that Article 3(1)’s “ensure” obligation can ground damages claims when vertical direct effect is available.
  • Corrects a recurring domestic misstep on “emanations”: the decision reinforces that courts must not treat Foster as imposing a universal conjunctive test; Farrell v Whitty governs.
  • Practical litigation consequence: defendants structured as companies but operating governmental schemes should expect disclosure/agreements on their constitutional and financial arrangements, because these facts drive the emanation analysis.

4. Complex Concepts Simplified

4.1 “Direct effect”

A provision of EU law is “directly effective” if a national court can apply it as a legal rule because it is sufficiently clear, precise and unconditional. For directives, this typically allows enforcement against the state (or an “emanation of the state”), not against purely private parties.

4.2 Vertical vs horizontal enforcement

  • Vertical: an individual enforces EU law against the state (or a qualifying state-linked body).
  • Horizontal: an individual enforces EU law against another private individual/company—generally not available for directives.

4.3 “Duty of result”

A “duty of result” requires an outcome (here: equipment safe to use without health impairment), rather than merely requiring reasonable steps. Article 3(1)’s repeated “ensure” language indicated a result obligation, subject only to the narrow “impossibility” scenario in Article 3(2).

4.4 “Emanation of the state” after Farrell

A body can be treated as the state for directive enforcement if it is:

  • subject to the authority or control of the State, or
  • given special powers beyond those under ordinary private-law relationships.

The body need not satisfy both.

5. Conclusion

Wetherell v Student Loans Company Ltd establishes (for pre-Brexit facts) that Article 3(1) of Directive 2009/104/EC is capable of direct effect: it confers an identifiable worker right to suitable, safe work equipment framed as a duty of result, with national courts obliged to provide an effective remedy. It further reinforces, by applying Farrell v Whitty, that “emanation of the state” is a disjunctive test, necessitating remission where lower courts applied an erroneously conjunctive Foster formulation.