Anything designed to reduce the burden of regulation on employers must be a good idea, right? Well, not necessarily, no, and certainly not the proposed Social Action, Responsibility and Heroism Bill, a legislative proposal defective from conception to execution in almost every way it is possible to imagine.
The Bill is designed, says proud sponsor Justice Secretary Chris Grayling, to “slay the health & safety culture” and that other pet hate of Daily Mail readers everywhere, ambulance-chasing lawyers advertising on daytime television. It is Mr Grayling’s view, his advisers tell him, that fear of personal injury claims from employees is deterring would-be employers from hiring new staff.
The Bill requires a Court considering whether an employer has been negligent or breached a statutory duty to have regard to whether it (i) was acting for the benefit of society; (ii) demonstrated a generally responsible approach towards protecting the safety of others; and (iii) was acting heroically by intervening in an emergency to assist an individual in danger.
And that’s it, the work of scarcely a page. The draft is unburdened by definitions, and so offers no clue as to what is meant by “for the benefit of society”, “heroically” or “generally responsible approach”. As a means of generating further remunerative work for those same lawyers through endless satellite litigation on those points, this is a masterstroke. The Courts themselves may justifiably wonder whether “have regard to” means that they can (or must?) find someone acting for the benefit of society not to have been negligent in circumstances where someone less public-spirited who did exactly the same thing would be. Or is it a quantum issue only, i.e. that if you are injured by the negligence of a “generally responsible” employer, you should receive less compensation than for the same injury caused by the same negligence on the part of an employer with a generally more cavalier approach?
Aside from the drafting, what about the objective of the Bill – to make people less likely to blame others for their own negligence or foolishness? “I think perhaps [there is] too little inclination to say “it was me that messed that up”. We are a bit of a society that is a bit too inclined to blame someone else”, Mr Grayling told The Telegraph in somewhat halting English. He continued: “It is about trying to restore common sense to the kind of situations which happen all too often and very seldom get to Court – where somebody…does something dumb, hurts themselves and sues the employer anyway. For responsible small businesses it is a real headache and most of the time they just pay up because it is less hassle to do so”.
So the reality even in Mr Grayling’s own case is that employers pay out because health and safety proceedings are “hassle”, not because they fear losing. Nothing in this Bill makes the remotest difference to that, since by definition it forces the employer all the way to Court before its provisions would apply anyway. The provisions are too ill-drafted to offer any greater certainty of outcome even when you get there and the Courts already have a very wide discretion to find against unmeritorious claimants and those who brought their misfortune upon themselves in whole or part. In particular, the Bill completely fails to consider the position of the injured person – if my health, career, life is destroyed because of someone else’s negligence, it will be no compensation to me that the person who did this to me has a generally (though not in my case) responsible approach to worker safety.
Somewhat against the run of informed opinion, one commentator has described the Bill as “Chris Grayling’s finest hour” – it is only on closer reading that it becomes clear that his article is so laden with sarcasm that it can scarcely stand up. It is impossible to disagree. Employers and society generally deserve much better than this.