Major changes on the way to health and safety?
Legislation that could see significant reform to health and safety recently received Royal Assent. Amy-Jo Campbell and Roy Woollard consider the implications.
A clause inserted into the Enterprise and Regulatory Reform Bill had the potential to return health and safety legislation to where it was in the late 19th century, where claims had to be based in negligence. At the time of writing, that matter hung in the balance.
The clause amending s. 47 of the Health and Safety at Work Act 1974 (HSWA) has now received Royal Assent and will now become law. So, will the changes be welcomed by businesses and other organisations?
Background
The Government had brought forward (as s. 61 of the Enterprise and Regulatory Reform Bill) a proposal to amend s. 47 of the HSWA. That proposal had been rejected by the Lords, but the Government, on the 'ping pong' had reinstated clause 61 (the amending clause) and sent the matter back to the Lords for further debate on Monday 22 April 2013.
At 11.00pm that day the amended motion (D1) "that this house do insist on its Amendment 38" was voted down quite heavily, 112 to 170. Therefore the Government's amendment to s. 47 HSWA was reinstated and Royal Assent was given on 25 April, to the Enterprise and Regulatory Reform Act 2013.
There is now a need for Regulations to be written and a Commencement Order put in place to activate the reform. Once this is done, the change will rewrite the law as it now stands; it will reverse the presumption that breach of a H&S regulation automatically gives rise to civil liability for the employer.
In short, all civil claims (unless the proposed regulations say otherwise) will need to be brought – and proven – in common law negligence.
It is important to note that this does not just refer to 'strict liability' Stark v Post Office (2000) claims, but to all claims. As things stand, in terms of employers' liability (EL) claims, both the European Directives (‘six pack’ etc) and the HSWA itself have been overturned in favour of claims in negligence only.
Speculation
It is firstly important to appreciate that for the time being at least, nothing has changed. As ever, the devil is in the detail, and the detail will be in the Regulations.
Speculation about the possible shape of the regulations has run to opposite ends of a spectrum:
- On the one hand, the Government could produce regulations which echo the current position, but remove the highly disliked 'strict liability' aspects. These regulations would possibly bring back the 'reasonable practicability' defence and effectively reinstate the HSWA. This would be something of a legal 'stand down'.
- However, on the other hand, there are powerful political and business voices wanting the Government to run with a stark 'negligence only' approach, knowing that this will probably bring the Government head to head with the EU since the negligence only approach looks likely to be at odds with EU law. This would be a matter of law which asks "Which has precedence, new Westminster law or an EU directive?" To put it mildly, this could be something of a legal 'train crash'.
How does this impact me?
We consider that the Enterprise and Regulatory Reform Bill (now Act) should be welcomed by businesses and other organisations. From a pragmatic perspective, it will mean that they are better able to resist litigation for injuries that are not their fault, which will allow them to devote resources to maintaining health and safety standards – this is certainly the Government's stated objective.
Perhaps unsurprisingly, the Trades Union Congress’ view of this change is that it "will lead to a legal nightmare as the courts have to unpick decades of case law on compensation." Nevertheless, the broader challenge for society remains to ensure that UK workplaces remain safe.
Only time will tell whether these changes will result in safer workplaces at lower cost.
Amy-Jo Campbell is a solicitor and Roy Woollard is a partner at Berrymans Lace Mawer. Amy-Jo can be reached on 0113 261 5553, while Roy can be contacted on 0113 220 5563 or byThis email address is being protected from spambots. You need JavaScript enabled to view it..