The Enterprise and Regulatory Reform Bill includes clause 62 which will amend the Health and Safety at Work Act 1974 and change the approach currently taken to compensate employees who are injured as a result of their employers failing to comply with key health and safety legislation. Despite much opposition, the House of Lords voted on 22 April 2013 for the UK to implement the Bill including this clause. It is timetabled to come into effect between October 2013 and May 2014.

Philippa Luscombe, head of the personal injury team at Penningtons Solicitors LLP, has serious concerns about the impact of this proposed change.

At present there is a core set of health and safety legislation with which all employers must abide. Since the 19th century, the law on claiming compensation for workplace injury where the employer has breached his statutory duty has been simple. Section 47(2) of the current Health and Safety at Work Act says: "Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise."

This means that, should an employer breach the legislation and, as a result, an employee or employees are injured, the employee is likely to succeed in a claim and recover compensation for that injury - provided that the breach can be proved by the injured employee(s) and the injury sustained is consequent upon that breach. In a number of situations, the employee does not need to prove how a breach has occurred or the employer’s level of knowledge. The fact of a breach and a consequent injury is sufficient.

The new clause proposes that, if an employer breaches health and safety regulations and injures an employee, that employee will no longer have a consequent right to compensation. He will have to prove that negligence has occurred. Proving a breach of the fundamental legislative requirements for employers will no longer be sufficient.

We have six key areas of concern about these changes:

  1. The burden of proof will transfer to employees who will find it harder to prove their cases.
  2. Rather than a fairly clear cut test of whether or not legislation has been breached, the test of negligence is much less clear cut and the test may well be higher. The opportunity for the employee to get evidence will be more difficult, making it harder to bring claims. 
  3. Because the test of negligence has at least some element of subjectivity, it makes it more likely that defendant employers and their insurers will fight claims arising out of injuries at work.
  4. Cases where an employee has died as a result of an injury at work may prove very difficult to bring if the deceased’s evidence as to what happened is key to proving negligence as opposed to a just breach of legislation. For example, where the fact of a piece of equipment being faulty and causing injury may be enough now to found a claim, when the legislation is enacted it may be necessary to prove how the equipment became faulty, whether the employer knew and how it caused the injury. This could be evidence that was only known by the deceased employee.
  5. When combined with the forthcoming costs reforms, access to justice for genuine claimants is likely to reduce where evidence and/or value is limited and a case is defended.
  6. If the likelihood of successful claims arising from breaches of the health and safety legislation is reduced, this is likely to result in falling safety standards and cutting corners, especially in times of economic difficulty where compliance can be costly.
     

The introduction of clause 62 has been presented as a way of reducing the 'burden' of health and safety and as a reduction of the 'burden' on business, which will help Britain to compete. However, what this change effectively does is to undermine the health and safety system by significantly reducing the impact of any breaches of the legislation on an employer and their insurer in a situation where the impact of the injury to the employee from the employer’s failings is the same.

To improve our competitiveness by reducing our health and safety standards and to implicitly encourage the reduction of expenditure on health and safety by reducing the significance of a breach is of real concern. At present, the potential for claims is a factor which ensures compliance and, in many cases, results in insurers making sure that employers are compliant with the legislation. Without this incentive (at least to the same degree) and with the simultaneous cuts in the Health and Safety Executive’s investigative and prosecutor role in practical and resource terms, the worry is that the removal of the clear provisions for employee compensation introduced in Victorian times now may, in fact, recreate some Victorian employee conditions.