24th January 2014

Enterprise and Regulatory Reform Act

For much of the last century (and certainly for many years before the UK joined the European Union) successive governments were busily enacting health and safety regulations to protect employees working in offices, shops, and factories.   In all this time it was generally accepted that employers owe higher duties to their employees working on their premises than ordinary citizens owe to other citizens.  If a driver knocks a pedestrian down in his car, the pedestrian has to prove that the driver was negligent before he can claim damages, i.e., that he failed to drive with reasonable care.   But it was thought that the duties of an employer should be much more strict.   He is operating a business for profit, he is very much in charge of the building in which the employees work, he decides what equipment to provide, and decides all the working practices and systems.    He must therefore take special care, and it is not reasonable to expect employees to prove negligence every time they are injured.    It was also thought that expecting especially high standards of employers forces them to take health and safety very seriously, and encourages them to anticipate where accidents are likely to happen and take preventative measures, rather than simply reacting after an accident has happened.

Thus, since 1998, there has been a regulation stating “every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair”.   There are no ifs and buts about it.    If work equipment is not maintained properly and it causes injury, the employer is going to be liable.  The employee could sue him for compensation, and would not have to worry about proving negligence or exactly how the accident happened.

However, all that has changed since 1 October 2013.    On that date the Enterprise and Regulatory Reform Act 2013 came into force, and included in it a provision which states that breaches of health and safety regulations shall no longer be actionable, that is to say, that employees injured as a result of an employer breaking a health and safety regulation can no longer sue him for damages simply because of that breach.   In effect, the government has tried to put the clock back about 80 years, and to reintroduce the earlier position where no employee could sue his employer unless he could prove common law negligence.

This is therefore a potentially momentous change,  and it is surprising that it has hardly been mentioned in the national press.   Possibly it appeared too technical for journalists to take any interest, but once employees who have been injured after 1 October 2013 start coming to their solicitors and find out that they no longer have the same rights, the penny may drop, and it will be surprising if there are not some signs of mounting concern.

It should be noted that the new law only applies to accidents at work occurring after 1 October 2013.   Accidents before that date will continue to be dealt with under the old law.  Also, the Health and Safety Regulations are not being revoked, and breach of them will still be a crime for which employers may be penalised by the State.  However, there is no doubt that there will be a considerable effect on claims brought by employees against their employers for damages.

Not all the regulations which employees could sue under before 1 October 2013 were entirely strict.  For example, one of them stated “every place of work shall, so far as reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there.”

The way this worked was that the employee first of all had to prove that his place of work was not safe.   If he succeeded, and showed that his injury was caused by that failure, he was entitled to damages.   The only way the employer could avoid paying damages was to prove that it had not been reasonably practicable for him to eliminate the risk of harm.   It was not up to the employee to prove that the employer had not done everything reasonably practicable.

It is unlikely that the new Act will have quite the effect the government hopes for.   If in the future an employee sues his employer for damages, and is having to prove negligence, one of the things he can do is prove that the employer broke the Health and Safety Regulations.   That would be very good evidence of negligence.   All employers have a duty to obey the law.   If they carelessly fail to do so when it comes to Health and Safety Regulations, it is foreseeable that employees will be injured.   It is difficult to see how a court could hold that an employer had taken reasonable care for the safety of his employees if he was in breach of the Health and Safety Regulations laid down for the protection of employees.

There are also problems with Europe.   The Treaties which form the basis of the European Union state that it is part of the EU’s business to improve health and safety.   They confirm that while members can improve their health and safety, they cannot do anything to reduce the level of protection given to employees.   Since this Act certainly does reduce that protection, it may well be contrary to European Law and subject to challenge in the Courts on that basis.

The European Court of Justice has also recognised that individuals can claim compensation against the State for losses arising from the State’s failure to carry out the requirements of directives.  Public sector employers, such as the NHS, count as being part of the State. Thus, if an employee is a public sector employee, the old pre-October 2013 regulations may still apply, putting them in a  better position than private sector employees, which many will think unfair.

Finally, there may be human rights challenges.   In a belated fit of political correctness, the government granted an exclusion from the new law for pregnant mothers, mothers who have recently given birth, or nursing mothers.   If you are lucky enough to fall into these categories, you can still sue your employee for breach of the regulations just as you could before 1 October 2013.   Whilst nobody would question the correctness of that, we now have a situation where if a pregnant woman slips on an oily floor in a factory she can claim damages without having to prove negligence, but if 5  minutes later a man slips in the same oily patch, he cannot sue without proving negligence.   Again, many will think this unfair.

Richard Godden
Partner – Dispute Resolution 



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