Dawn of a new ERRA
As we approach the 6th anniversary of the introduction of the Enterprise and Regulatory Reform Act (ERRA) S69 only now do we have the first significant judicial interpretation of an employer’s duty post implementation
In Cockerhill V CXK Ltd (2018) the claimant was injured during the course of her employment as a careers advisor whilst visiting unfamiliar premises. She fell down a 7 inch step sustaining a serious ankle injury. The step edging had hazard tape applied. A sign warning of the step was not visible to the claimant due to it being obscured by an internal door had been propped open.
A risk assessment carried out on behalf of the occupiers of the building concluded that the hazard tape was a reasonable precaution. The trial judge accepted this proposition finding that there was no duty to keep the door which obscured the sign closed.
The claim failed against both the building occupier and her employer. Whilst the employer had not performed their own assessment they were aware of the occupier’s assessment and entitled to rely on it. Had the employer performed their own assessment it was difficult to see how it would have differed.
Before considering the Judge’s analysis it is worthwhile remembering that the purpose of the European Directive which implemented the ‘Six Pack’ and associated health and safety regulations was the promotion of health and safety in the workplace. It was not a means for injured employees to pursue compensation claims.
In reaching his conclusion the Judge made some important comments:
- The Regulations remain in place. S69 simply removed direct civil action in respect of breach.
- The Regulations therefore continue to be relevant to the question of what an employer ought reasonably to do.
- However NOT ALL BREACHES OF THE REGULATIONS WILL BE NEGLIGENT
This final point is crucial.
It has been argued that breach of statutory regulation would of itself lead to a finding of negligence. This did however ignore the different level of duties required to comply with statutory regulations which were typically drafted in terms of ‘the employer shall’ or the employer ‘shall as far as reasonably practicable’. Contrast this with the common law duty to take reasonable care.
In Hide V The Steeplechase Co (2013) C, a jockey who was injured when he struck a padded post on Cheltenham Racecourse, failed in his case at first instance but succeeded on appeal, the appellate Court holding that had the claim been decided on a common law basis the defendant would have succeeded. The provisions of the PUWER under which the claim was brought imposed a higher duty in terms of compliance.
It should however be remembered that the majority of claims pre- and post-ERRA succeed not because of technical breaches of Regulations but because of a failure on the part of the employer to take any reasonable steps to safeguard the health and safety of employees.
When assessing breach of duty it remains good practice to consider the nature of the duty set out in the relevant Regulations and then consider whether the employer has taken reasonable steps to comply with these duties.
Lastly (and perhaps ironically) the Employers’ Liability (Defective Equipment) Act 1969, the forerunner of PUWER, remains in force. Were Stark v Post Office (2000), a case cited as a prime example of the need for S69, be tried today Mr Stark would probably still succeed. The 1969 Act also effectively imposes strict liability on the employer in respect of defective work equipment.