Relying on EU Directives for Pre-Brexit Breach: Wetherell v Student Loans Company Ltd

The Court of Appeal has handed down judgment in Wetherell v Student Loans Company Ltd [2026] EWCA Civ 645, where the Claimant relied directly on an EU law directive to obtain damages from his employer for noise-induced tinnitus. Tom Carter and Jessica Woodliffe appeared for the successful appellant.

Many noise claims involve exposure which happened long before Brexit. The claim underlying the decision of the Court of Appeal in Wetherell v Student Loans Company Ltd [2026] EWCA Civ 645 was one such claim, where the Claimant employee alleged symptoms of tinnitus caused by spikes of noise from a headset in a call centre.

On the merits of the claim, a single joint engineer said that the headset complied with all relevant health and safety guidance so there was no claim in negligence.

Following the Enterprise and Regulatory Reform Act 2013, there has been no civil cause of action for breach of health and safety regulations since October 2013.

However, in Wetherell, the Court of Appeal has confirmed that a claimant can rely directly on an EU directive through the principle of direct effect (see [37]), provided the directive is sufficiently precise and unconditional to give rise to liability (see [50]).

In this case, that was Article 3(1) of Directive 2009/104/EC (“the Work Equipment Directive 2009”), which largely mirrors Regulation 4 of the Provision and Use of Work Equipment Regulations 1998.

Following the Court of Appeal’s decision, Article 3(1) of the Work Equipment Directive 2009 has been held to give an employee the right to be provided with work equipment which is suitable. That is a freestanding right, which is sufficiently clear, precise and unconditional (see [52] onwards), and which may be relied upon before or after October 2013: it is immaterial whether national implementing measures provide specific means of enforcement, as the Court of Appeal has held that the courts must provide an effective remedy [67].

The predecessor to the 2009 Directive was Council Directive 89/655/EEC in 1989, which was in materially identical terms, so it is difficult to see that the courts would approach it any differently.

Therefore, the practical effect of the decision is that many historic noise claims where exposure was before Brexit, whether post-October 2013 or decades ago, may now involve a test which is close to strict liability, rather than negligence. As the Court of Appeal made clear at [10], the parties were proceeding upon the basis of the relevant law in force when the breach occurred in 2014 (i.e. pre-Brexit).

The scope of what constitutes “work equipment” is broad. It could include defective ear defenders, or arguably not being provided with ear protection at all. The work equipment could be noisy machinery in a factory which exposed an employee to noise below the 90/85db(A) thresholds at the relevant time but which might now be sufficient to establish liability.

The decision leaves open the question of claimants relying directly on any other EU directives where they suffered exposure pre-Brexit. The Court of Appeal was careful to limit its decision only to Article 3(1) of the Work Equipment Directive, but a claimant can rely directly on any provision of any directive in the same way provided it satisfies the conditions of direct effect.

Directives have direct effect only when proceeding against the state or an emanation of the state. In Wetherell, the defendant was the Student Loans Company Ltd, a limited company but which is owned by the state and exists solely to administer student finance.

Purely private companies are safe from the effect of the decision. However, any successors-in-title of previously state-owned industries, or quasi-public companies such as utility companies, will need to be aware of the potential ramifications of the Court of Appeal’s decision.