By virtue of section 69 of the Enterprise and Regulatory Reform Act 2013 (the 2013 Act), section 47 of the Health and safety at Work etc Act 1974 (the 1974 Act) is amended. The amendment demonstrates that the Government has, in the teeth of significant opposition from claimants' representatives and the House of Lords, finally introduced legislation to remove "strict liability" for breaches of certain health and safety regulations. In fact, it has gone further than that, effectively removing the civil liability on the part of employers for breach of health and safety regulations contained with the 1974 Act.
This revolutionary change is expected to come into force on 1 October 2013 and will only apply to breaches that occur after the commencement date.
Going forward, no civil claim can be brought for breach of a health and safety statutory duty unless the regulation expressly provides for it - thereby reversing the current position. It will, in almost all cases, require the claimant to prove that the employer was negligent and his injury and losses were caused by the employer's negligence.
Under the present system, claimants are entitled to bring civil claims for damages against employers who are in breach of certain health and safety regulations unless those regulations expressly provide otherwise which, currently, they do not. These regulations are commonly referred to as the "six pack" regulations.
Some duties imposed by the six pack can be breached even if the employer has done nothing wrong. For example, Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 requires an employer to ensure "that work equipment is maintained in an efficient state, in efficient working order and in good repair". Therefore, if a piece of work equipment fails in some way, the employer is in breach - even if that failure could not be foreseen and even if the employer can prove that it regularly carried out appropriate maintenance on the equipment. Liability is said to be "strict" in those circumstances.
A welcomed rebalance
The current legislation reflects a policy decision that employees going about their normal work duties should be entitled to compensation in such circumstances, even in the absence of fault on the part of the employer. The reason for this entitlement being based on the premise it is better that employees receive compensation from defendants who are legally required to have insurance to meet such claims than not to. That has now gone. The removal of strict liability for events that the employer could do nothing about - the so-called "strict liability" cases - will certainly be welcomed by defendants and their insurers.
It has always been difficult to explain to an employer that, despite their diligent work in relation to health and safety, they are still liable to the claimant because, for example, a piece of work equipment malfunctioned unexpectedly. The removal of civil liability for breach of any of the health and safety regulations - whether imposing strict liability or not - demonstrates the Government’s determination to tackle the frequently cited 'compensation culture' and the burden of regulation on businesses that are overspending on compliance measures to avoid litigation.
To what extent removing the entitlement to bring a civil claim for breach of health and safety regulations reduces litigation waits to be seen. Claimants will, of course, still be able to bring claims in negligence, and will no doubt refer the court to the six pack as illustrative of what a reasonable employer should be doing. Those regulations are likely, therefore, to still play an important role in the litigation, be it one that is reduced to a supporting one. However, from the defendant’ perspective, the reform redresses an imbalance in favour of the claimant employee.
A twist in the tale?
An important consideration is the position of "emanations of the state", such as local authorities, government departments, public health bodies and police authorities.
UK health and safety regulations brought into effect a series of European Directives relating to health and safety in the workplace. These provide that a person employed by such public bodies could, at least in principle, sue his employer for breach of the relevant European Directive, even if he was precluded from suing that employer for breach of the regulations brought in "under" those Directives (i.e. as contained within English law).
This situation gives rise to the odd, and arguably inequitable, possibility that those employed by an "emanation of the state" would be able to bring a claim for breach of a European Directive against their employer, but those employed in the private sector would be unable to bring a claim against their employer for breach of the regulation brought into give effect to the very same Directive and for the same failing. The Government is aware of this possibility, but appears to have effectively ignored it. We, therefore, await with interest to see if and how such an oddity is addressed.
In March 2011 a review of health and safety regulation was commissioned by the Government and conducted by Professor Löfstedt. Professor Löfstedt recommended that regulatory provisions which impose strict liability should be reviewed and either qualified with "reasonably practicable" (where strict liability was not "absolutely necessary"), or amended to prevent civil liability for a breach of those regulations. The Budget 2012 proposed legislating to improve the current situation and the 2013 Act goes beyond that.