December 6, 2013
In early October I wrote about the changes to strict liability in The Enterprise and Regulatory Reform Act 2013 and as the dust has started to settle, I thought now would be a good time to revisit the implications of the changes and discuss who, if anyone, is set to benefit from these changes.
In brief, The Enterprise and Regulatory Reform Act 2013 effectively removed the strict liability element of the 'six pack' regulations. This meant that a breach of the regulations did not automatically attract a finding of negligence against the employer. Since the changes have been introduced it has become apparent that this was not the intention of the independent review, with even the author himself (Professor Lofstedt) commenting that the changes made were more far reaching than he had anticipated.
What effect will these changes have on the working population?
According to the Health and Safety Executive, since the Health and Safety at Work Act 1974 was introduced there has been approximately an 83% reduction in fatal injuries and a 77% reduction in non-fatal injuries at work. This is credited to the fact that employers have a legal obligation to comply with the regulations, so it effectively encourages safe behaviour.
The 'six pack' regulations remain in place, and a breach of these would still attract criminal liability resulting in fines and possible HSE intervention. However the firm legal obligation with regard to injury has, in essence, been removed so it is likely that businesses may become more complacent in their attitude towards the safety of their employees and the likelihood of accidents occurring will no doubt increase.
If not your employer, who would financially support you after an accident?
It would inevitably be the State who would foot the bill - be that in the form of sickness benefits or NHS full-time medical care. Family members or friends would no doubt provide you with care and assistance as well, but what effect would this additional responsibility have on their lives?
The Government claims to have introduced these measures to counter-act the perceived 'compensation culture' but they have failed to consider the big picture. Instead of the insurance companies paying-out (whose policies are taken out for this very purpose), it will be the tax-payer who will suffer in the end.
Public vs. Private sector
A further complication to this position is where an employer is also a public body (local authorities, police forces, government departments etc).
As a result of European Directives relating to health and safety in the workplace, it is still possible for those employed in the public sector to bring a claim for breach of a European Directive. However those working in the private sector would be unable to bring a claim against their employer for breach of the ('six pack') regulation which had been brought in to give effect to the very same European Directive.
This ultimately means that those working in the public sector could potentially find it easier to pursue a claim against their employer for injury at work than a private sector employee. The Government is aware of this possibility but appears to have ignored it.
These changes mean that in a time of austerity, we will ultimately be putting even more pressure on public bodies, whilst the insurance companies’ profits increase as a result of fewer successful claims being made against their policies.
So what does the future hold for injury claims in the workplace?
Solicitors acting for injured people will have their work cut-out and will need to be even more diligent when listing acts of negligence. They will also have to consider relying on older, long-forgotten statutes and legislation.
However, workplace injury claims caused by a breach of health and safety regulations can still be successful, provided the lawyers acting are willing to carry out the additional work required for a negligence-only claim.