The Enterprise and Regulatory Reform Act 2013 – What Happens Next?

The much discussed and debated Section 69 comes into force from 1 October.  This means that an employer’s breach of a duty imposed by Health and Safety legislation will no longer be actionable in the civil courts. This is achieved through an amendment to Section 47 of The Health & Safety at Work Act 1974 and turns the law in this area completely on its head.

There is no doubt that this change represents a significant step backwards in Health and Safety protection offered to workers injured at work, through no fault of their own. An employee will now be required to prove negligence on the part of their employer and will no longer be in a position to rely on the concept of strict liability. But it goes much further than that. The original stated intention of the change was to lessen the ‘red tape’ burden on employers and to review compensation claims arising in situations where an employer could not have reasonably foreseen the injury occurring. The actual result is that all breaches of health and safety legislation, whether they give rise to strict liability or not, cease to be actionable in the Civil Courts. Those bits of legislation aren’t there to cause inconvenience to hard pressed employers, or to encourage compensation claims by employees (which are falling). They are there to promote and ensure the right of those in the workplace to a safe working environment. Every employee has the right to return home from work uninjured and anything which dilutes those rights must be a bad thing within a civilised society.

An employee injured on 30 September 2013 is in an entirely different situation to one injured on 1 October. When put into the context of a fatal accident, for example, the disparity seems unjust. If something goes wrong with a piece of work equipment that results in a death, is it right that that person’s family can no longer rely on the principle of strict liability? Even if the employer couldn’t have foreseen the defect, is it right that the family are potentially left without any redress? Isn’t that partly why Employers Liability Insurance is compulsory in the workplace? Under the new rules a claim such as this may well fail.

It doesn’t stop there. There is an argument that public sector workers will maintain the right to sue their employer directly for breaches of the health and safety regulations, as the public sector employer is an ‘emanation of the State’. This would include local authorities, Government Departments, the NHS and schools for example. Immediately we find ourselves in a situation where a worker injured in the private sector is less well protected than a teacher, a civil servant or a nurse.  It is difficult to see how this can be justified on any measure. The Government is aware of this imbalance, but has failed to address it.

There now exists a high degree of uncertainty in an area previously relatively well settled in terms of what the law actually is and how the Courts will interpret it. We now find ourselves thrust into the realms of the common law and it really is anyone’s guess at present as to how the Courts will deal with these cases. Will Judges take the view that the standards of the day have changed and developed in line with the Regulations concerned? This all remains to be seen, although it is fairly certain that the Courts are going to have a very busy time dealing with the fallout from this legislation.

At Minster Law we remain committed to fighting for the rights of those injured in the workplace through no fault of their own.