MPs urged to reject removal of civil liability in health and safety law in the Enterprise and Regulatory Reform Act in Common today.

“The Hazards Campaign urges MPs to follow the Lords and reject the clause inserted into the Enterprise and Regulatory Reform Act that removes civil liability from the Health and Safety at Work Act, when it comes back to the Commons for debate today. This clause was inserted into the Act at the last minute, by the Department of Business Industry and Skills, without any consultation or supporting evidence. It will make it far harder for workers to gain compensation to which they are entitled when through no fault of their own; they are injured or made ill by their work, as the bar of proof will be set unfeasibly high. Instead of being able to rely on breach of a statutory duty by their employer as some evidence of negligence, workers will have to prove forseeability, a tough task at a time exacerbated by cuts in legal aid.   It must also be remembered that less than 10% of workers who are injured or made ill actually receive any form of compensation, so there is no actual compensation culture, just employers’ misperception, and a bad reason to change the law.  This is not redressing the balance but penalising workers and giving unscrupulous employers free rein by removing access to justice. It is a scoundrel’s charter that will harm more workers and shift more cost to the public purse by letting bad employers get away with it.” Said a Hazards Campaign spokesperson.

The arguments for removal of civil liability from health and safety regulations are not based on evidence or reality, but according to Lofstedt Report, on ‘the belief of employers in a ‘compensation culture’ has an impact in driving over-compliance with health and safety regulations’. The government’s claim that this clause is implementing Lofstedt’s recommendation on ‘strict liability’ is also false as it covers all civil liability: In his report assessing how the Government was implementing the findings of his review, published in February 2013, Professor Lofstedt stated that the Government had gone much further than he proposed. His report said “My understanding is that the proposed amendment to the Health and Safety at Work Act reverses the current position on civil liability. This means that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove that the employer has been negligent. The approach being taken is more far-reaching than I anticipated in my recommendation.”

There has always been a widely accepted fair balance in health and safety regulation between different types of obligation, and the majority are qualified by reasonable practicability but including some that are strict, since the Factories Act 1937.  In fact there are very few cases where compensation cases are taken on the basis of strict liability which is why the Lofstedt report had difficulty in identifying any. It also explains why the Government has introduced an amendment that goes beyond strict liability and would, as it stands, apply to civil cases involving breaches of statutory duty under workplace regulations.

Lords calling for the removal of the clause labelled it ‘ugly’. Lord Stevenson said “The requirement to prove forseeability is a very high bar of proof for an individual injured, or killed through no fault of their own. There has been no consultation on this proposal, and what is being proposed goes further than the recommendations made in this area by Professor Lofstedt”.

Lord MacKenzie agreed adding that the changes will “ assist the unscrupulous to ignore health and safety law by reducing the chances of successful civil action. That is going to lead to more workplace injury in the future”. Lord MacKenzie also said that an injured worker is highly unlikely to know about the history of work equipment or be able to investigate whether the employer was at fault. He added that this change in the law would not only shift the balance of power dramatically against employees, but that litigation would become more costly, time consuming for everyone,  and employers would not benefit.”

For more information contact the Hilda Palmer, acting Chair of Hazards Campaign 0161 636 7557