Health and safety law gets an overhaul

The Enterprise and Regulatory Reform Act 2013 gained royal assent on 25 April 2013, and it has the potential to be the most significant piece of legislation for health and safety law in 40 years. Once implemented, it will allow for the removal of strict liability, in civil claims, for breaches of certain health and safety regulations. Helen Grimberg of Berrymans Lace Mawer LLP considers the implications.

The present law entitles claimants to recover for damages where defendants (their employers) have breached certain health and safety regulations, regardless of whether the defendant was negligent. Hence, strict liability. Some of the well-known “six pack” regulations, introduced in the 1990s, impose this strict standard of liability for civil claims.

The Enterprise Act gives the Secretary of State the power to make regulations to change the standard of care of existing regulations, effectively allowing the Minister to remove strict liability. The timing of any change is uncertain, with no date fixed by which the current strict standard of care will be adjusted. This change could come into effect on 1 October 2013, although it could be later. The extent of the change is also uncertain: the Secretary of State may choose to alter the standard of care in some regulations, but not others, on an ad hoc basis.

The consequences

It is not yet clear what effect this change would have on the number and the success rate of claims that defendants employers may face. In a small number of cases, it may be obvious that there is no negligence on the part of the employer. If so, employers would expect to succeed where they would previously have lost.

Nevertheless, it can be anticipated that claimants will seek to rely on the ‘six pack’ regulations as a standard of reasonable care in any action for negligence. On that basis, it would follow that any breach is indicative of negligence. Judges may be sympathetic to this approach, especially where claimants are left with no other source of remedy in relation to their injuries. Old habits die hard, and it may take some time for judicial thinking on employers’ liability to evolve from the current position (i.e. strict liability pre-Enterprise Act).

For both claimants and defendants, there is likely to be more work in claims handling than at present. One the claimant side, negligence would have to be proven in order to establish liability, rather than simply proving the breach of the regulation (as now) and relying on the automatic strict liability that flows from that. On the defendant side, there may be greater incentive to fight the claim precisely because the lack of proof of negligence would result in it failing. So it may be that some cases become more expensive, but overall the change is undoubtedly a positive development for defendants, as they will now at least have a credible choice as to whether they fight or settle.

The European angle

UK health and safety law is, on the whole, the national implementation of Directives from the European Union. The extent to which the UK Government can scale back protection of workers (whether real or perceived) while respecting the relevant EU law is therefore subject to debate. Only a decision from the European Court of Justice, if and when it comes, would settle this question.

The impact of the Act

Taken together with the recent civil justice and litigation costs reforms, the Enterprise Act will significantly alter the economics of claiming. Claimant solicitors will have to do a great deal more work on a negligence-only case than they would on a straightforward strict liability one. Any extra would could therefore be more expensive in those cases which succeed.

It is too early to tell at this stage what the impact of the Act will be until the Secretary of State actually makes some changes. Nevertheless, it should be stressed that any change will not affect risk prevention and risk management advice to businesses.

It should not be forgotten that whatever happens under the Enterprise Act, breach of health and safety regulations will still attract criminal liability - hence fines and very possibly HSE fees for intervention. So despite the likely removal of some instances of strict liability in civil law, there is still a sound business case for employers to continue to do everything reasonably in their power to minimise the risk of accidents and to ensure workers’ safety.

Helen Grimberg: is a partner and joint head of the corporate risks team at Berrymans Lace Mawer LLP