Imagine you are at work and using a piece of equipment required to fulfil your duties. You are using the equipment correctly and as you've been instructed. However, the equipment malfunctions resulting in you being injured. The injury could be relatively minor and require a few days recuperation, or it could be very serious, potentially even fatal.
Consider the repercussions of such an accident if it requires you to take time off work - you may incur a loss of earnings and struggle to afford your monthly outgoings. But in the worst case you may never work again and need treatment and assistance for the rest of your life.
Now you might not necessarily know how or why the fault arose; it could be the fault of the equipment manufacturer, poor maintenance or even an unknown event. As it's possible even a vigilant system of maintenance could not have detected a fault, who, if anyone, would be responsible for such an accident?
One of those 'six pack' regulations is the Provision and Use of Work Equipment Regulations 1998
. Under Regulation 5, the employer must ensure "that work equipment is maintained in an efficient state, in efficient working order and in good repair". Many of the duties imposed by the regulations are 'strict' in the sense that they may be broken without any negligence or other fault. Therefore, if a piece of equipment fails in some way, the employer is in breach
, even if they could not have foreseen the failure and had done everything in their power to properly maintain the equipment. This is known as "strict liability".
To me it seems reasonable that if an employee goes to work and uses work equipment provided to them by their employer and they are injured due to a fault or malfunction (even if the employer is not aware of a fault with the equipment), any loss arising should fall on the employer rather than the employee. It was the employer who supplied the equipment and controls its use, therefore, regardless of fault it is the employer who creates the risk and not the employee.
The burden of health and safety regulation
But in 2012 a Government-commissioned review led by Professor Lofstedt of Kings College London, considered the possibility of:
"reducing the burden of health and safety regulation on businesses while maintaining the progress made in improving health and safety."
In this review Professor Lofstedt made recommendations aimed at streamlining health and safety regulations and reducing what is seen as 'needless bureaucracy' and claimed that the employers' belief in a 'compensation culture' has resulted in over-compliance with health and safety regulations.
There are two things in the previous paragraph that are un-nerving: "the burden of health and safety" and "over-compliance with health and safety". Surely you can never be "over-compliant" when it comes to the safety of your employees?
The recommendations made by Professor Lofstedt were that strict liability should be removed from some (not all) of the regulations where it is unnecessary or unfair to impose such liability. Instead, he advises that the employer should only have to show that they have done all that is 'reasonably practicable'.
In response to the report, the Government appears to have taken matters a step further. They have applied the term "reasonably practicable" to every regulation within the 'six pack' by introducing a clause within section 47 of the Health and Safety at Work Act 1974 as an amendment to the Enterprise and Regulatory Reform Act 2013.
Who will be liable?
As this clause became law on 1st October, employers (and ultimately their insurers) will no longer automatically be liable in the civil courts for breach of the regulations.
It is difficult at this early stage to predict how workplace claims will be dealt with in the future, but almost certainly there will be fewer injured people being able to secure compensation from their employer.
So, back to my original scenario: if an employee does get injured, who now is going to be responsible to pay for their treatment and losses? Not the employer, not their insurance company, but our welfare system.