Keoghs Insight

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Eric Woolley

Eric Woolley

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Breaking News: Enterprise and Regulatory Reform Bill

AWARE17/04/2013
Casualty Aware 2

When David Cameron became Prime Minister in May 2010 one of his stated aims was to reduce what he considered to be a burden of red tape hindering business. Amongst other things, this led to the commissioning of a report from Professor Ragnar Löfstedt that was published in November 2011. The report recommended amending health and safety legislation to remove strict liability from employers’ liability.

The duties placed on employers by the vast majority of health and safety regulation currently in force, and impacting on compensation claims arising from accidents at work, require compliance subject to a test of reasonable practicability or other similar wording.

In 2012 the Government published its Enterprise and Regulatory Reform Bill. Added very much at the last minute, clause 61 of the bill contained in its then proposed form what were potentially seismic changes to civil liability arising from accidents at work.

At present, s47 (2) of the Health and Safety at Work Act 1974, provides that breach of the vast majority of health and safety regulations give rise to civil liability. The wording of clause 61 appeared to reverse this position – breaches would not be actionable unless specifically provided for. The bill as drawn up did not set out any specific provisions for breaches to be actionable.

The potential impact of the proposals is not inconsistent with European Law. The purpose of the relevant EC directive was to introduce measures to encourage improvements in the health and safety of workers at work.

Taken at face value, an employee’s only remedy when seeking compensation for workplace accidents would be to pursue a claim based on common law negligence. Notwithstanding the removal of countless causes of action arising from breach of statutory duty, there would be significant difficulties for claimants, defendants, and not least the judiciary, in determining liability based on common law principles.

Since 1897, courts have increasingly had to determine employers’ liability claims by reference to an increasingly large number of statutory provisions. As a result, the impact of common law has become blurred. Perhaps not surprisingly this section of the bill was subject to much debate in the House of Lords and, albeit by a slender majority, an amendment was passed which sought to leave the present position essentially unchanged.

The bill has been returned to the House of Commons and clause 61 (now clause 70 in the amended bill) was debated on 15/16 April 2013. The current direction of travel appears to be towards the Government’s initial position of breach of statutory duty not being actionable unless specifically provided for.

The position should be much clearer by the end of the month. The bill will either be enacted into statute in time for the Queen’s Speech at the beginning of May or die a death leaving the current position unchanged.

Keoghs will provide updates as the position becomes clearer.