S69 Enterprise and Regulatory Reform Act... 2 years on
1st October 2015 saw the second anniversary of this piece of legislation, which deals with civil liability arising from breach of statutory duty. S69 triggered a fundamental change to the basis upon which employees can bring civil claims for compensation against their employers.
While it is likely to be some time before there are a sufficient volume of judgments from which to draw any firm conclusions on how the courts are implementing section 69, a recent Scottish case does raise some interesting issues.
Gilchrist V ASDA Stores (2015) is a judgment of the Outer House of the Court of Session, the Scottish equivalent of the English and Welsh County Court.
Mrs Gilchrist (the claimant) was employed by ASDA (the defendant) as a shop assistant. The claimant was 5ft tall and was using a ‘Dalek’ footstool to hang clothes onto a rack, which was 7ft off floor level. The claimant fell backwards from the stool, injuring her ankle.
The claimant argued that the defendant was in breach of their common law duties to the claimant, citing well-established common law duties including, providing a safe system of work and proper work equipment.
What was interesting was how the claimant sought to argue that the defendant had breached their common law duty of care. In simple terms, the claimant argued:
- Employers remain under a duty to comply with health and safety regulations.
- The duties set out in these regulations inform and define the scope of the duties at common law.
- An employer who breached a regulation could hardly be said to have acted reasonably.
- Breach of statutory duty meant the defendant had been negligent.
The claimant acknowledged, relying on the Court of Appeal decision in Hide v Steeplechase Co (2013), that the defendant may still avoid liability if the accident was caused due to unusual and unforeseen circumstances beyond the employer’s control; or if the cause was some exceptional event which could not have been avoided, despite the exercise of all due care.
It has correctly been reported that the trial judge accepted the claimant’s submissions on the impact of section 69. She did so because (for reasons, which are not clear) the defendant made no contrary submissions.
It remains to be seen how much can be read into this part of the judgment.
For example, there is no reference in the judgment to the Court of Appeal’s findings in Hide that the defendant’s common law duties in that case were lower than their statutory equivalent and, had the matter been decided on common law principles, the defendant would have succeeded.
Ultimately, the claimant’s claim failed. It was not argued that the Dalek stool was unsafe per se. The judge’s finding was that the claimant fell after she had finished hanging up clothes and the accident was caused by the claimant making a mistake as to her footing.
What can we draw from this, albeit for the moment, isolated judgment?
- The purpose of section 69 is to enable claims (save for those involving defective equipment) to be defended where the employer has not been negligent.
- Claimants may look to follow the line of argument advanced on behalf of Mrs Gilchrist in relation to section 69.
- Whilst only a judgment at first instance, if the claimant’s submissions on section 69 are not challenged then the efficacy of section 69 is significantly undermined.
- Breach of statutory duty should not equate to negligence. Common law duties are to act reasonably. Regulations are worded in terms of ‘the employer shall or shall as so far as is reasonably practicable’. The courts are clear that compliance goes beyond doing what is reasonable.
- Equally, it is unrealistic for the courts to disregard entirely the defendant’s statutory obligations when assessing negligence. For example, Schedule 1 to the Manual Handling Operations Regulations 1992 sets out a list of factors which the employer is required to consider when assessing a manual handling task. Any employer whose employees carry out anything more than occasional manual handling may struggle to persuade a court that they have acted reasonably, if they disregard the factors set out in Schedule 1.
- It should however be remembered the majority of claims will succeed not because of overly onerous statutory obligations but because employers have failed to take any reasonable positive steps for the health and safety of their employees.