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Health & Safety News

Spring 2013



Enterprise and Regulatory Reform Bill - Reform threatens employer liability

Simon Dewsbury says the government is taking workplace health and safety back to Victorian times

If government amendments to the Enterprise and Regulatory Reform Bill, which is currently going through Parliament, make it onto the statute book, health and safety law in place since 1898 will be overturned.

Injured workers will be unable to rely on their employer’s breach of statutory duty to claim compensation for injury.

This amendment has been drawn up on the back of the Löfstedt review of health and safety which was commissioned by the government as part of its drive to reduce red tape and the so called burdens on business.

Professor Löfstedt, who had little practical knowledge of UK health and safety law, suggested, in just a few paragraphs, that the safety law of strict liability might be unfair to employers who had done nothing wrong.

This failed to consider the unfairness of penalising workers injured through no fault of their own.

New Clause 62 of the Bill (as it was numbered as HSN went to press) goes far beyond Professor Löfstedt’s suggestion. It will remove the ability for anyone to sue in the civil courts for any breach of any health and safety regulations.

This means that employers will no longer be automatically liable in a personal injury action when, for example, a piece of machinery is left unguarded and someone suffers a traumatic amputation, or when electrical equipment is faulty and someone suffers a fatal or near fatal electrocution.

Strict liability for breach of statutory duty means the injured worker doesn’t have to prove the employer was at fault. They simply have to say, “the law says you should have done this and you didn’t”.

If the government succeeds in making the change, union members injured through no fault of their own will always have to demonstrate that their employer knew or ought to have known the equipment they were using or a particular working practice was unsafe if they are to receive compensation for their injury.

Indeed, most or all of the regulations referred to on other pages of this publication may be rendered useless. Manual handling cases, slipping and tripping at work and many occupational disease cases will be affected. A large number of the cases we have reported on in recent years would have failed in the courts.

HSE prosecutions could be left as the only means of enforcing breaches of the regulations, at a time when the HSE has dwindling resources to prosecute a tiny minority of cases.

The causes of workplace accidents can be complex and down to many factors. Employers may argue that faulty equipment was due to the manufacturer or the service company but, by not providing employers with an excuse, the strict liability provisions in the Health and Safety at Work Act mean an injured person doesn’t have to find out which of them was responsible.

Instead, their employer has to show that they have complied with their health and safety duties and are not in breach of the regulations.

This requirement provides a better level of protection for employees because it focuses an employer’s attention. Regulations encourage good behaviour.

Good health and safety should, of course, be a priority for employers irrespective of what it costs or the benefits it brings. But there is also plenty of evidence that it is very valuable, both by reducing days lost to sickness absence and in maintaining good employment relations.

The changes proposed by the government will not only set health and safety law back over 100 years, they will encourage poor employers to pay lip service to health and safety generally – the opposite of what Professor Löftstedt suggested.

Indeed, Löfstedt himself says, in his one year on review, that the government’s approach “is more far-reaching than I anticipated in my recommendation and, if this amendment becomes law I hope that the Government will carefully monitor the impact to ensure that there are no unforeseen consequences.” www.dwp.gov.uk/policy/health-and-safety

Civil justice reforms

They also come at a time when civil justice funding rules are changing, making it more difficult for injured people to find a lawyer to take their compensation claim unless it is going to be very straightforward, they can pay lawyers fees themselves or they are a trade union member.

This is as a result of the civil justice (Jackson) reforms contained in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act. From this April, no win no fee arrangements will effectively end. Because the guilty party (usually the employer or their employer liability insurer) will no longer have to pay the insurance premium that the injured person takes out to cover the cost of things like medical reports should they lose, even those able to successfully pursue a claim may not be able to get back the costs of doing so.

And because most work-related accident and disease cases are complex and require investigation and reports, solicitors are less likely to take the risk of running them because of the risk of not getting paid. The end of strict liability will make claims even more difficult as every case will turn on whether it is possible to prove fault by the employer.

We are seeing blow after blow to injured people. The government is also consulting on increasing the small claims limit for whiplash injuries and, possibly, all road traffic accident personal injury claims.

This means that many injured people whose claims are worth less than £5,000 will have to go to the small claims court to claim compensation, which will make getting legal representation difficult.

Thompsons is working with the TUC, trade unions, health and safety campaigners and Labour MPs to oppose the dangerous amendments to health and safety laws and further erosion of access to justice for injured people.

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