17 October 2012

By Marcus Weatherby, Pattinson & Brewer solicitors

Marcus Weatherby, who specialises in personal injury law at Pattinson & Brewer solicitors, lays out the facts and context behind the Coalition government's astonishing new proposal to repeal workers' 114-year-old right to rely on a breach of health and safety legislation in personal injury claims.

Employers could become no longer liable for some breaches of health and safety legislation

Keith Patten of Thompson's Solicitors says: "This is of potentially huge importance and needs wide circulation so it does not just slip in under the radar as a 'technical' amendment."

Please help us spread the word

The Facts

A total of 171 people were killed at work in Great Britain in 2011, compared to 147 deaths during 2009/10. More than 24,700 workers also suffered a major injury. In the year 2010/2011 statistics from the Health and Safety Executive show around 26.4 million working days were lost in total, 22.1 million due to work-related illness and 4.4 million due to workplace injuries.

The Government’s stance

The Government believes that there is an excessive health and safety culture in the UK, which is an albatross around the neck of British businesses and which strangles profit and innovation.

To investigate this the Government commissioned a specialist in risk management, a Professor Lofstedt to report on putting ‘the common sense back into health and safety’ (the IER responded here).

His conclusions largely supported the status quo, his general observation on health and safety being that “the problem lies less with the regulations themselves and more with the way they are interpreted and applied". He suggested however that sector-specific regulations be consolidated to simplify application and that the regulatory framework might effectively be tidied up to make it easier to apply.

The government embraced his report with zeal, believing as they do that simplifying Health and Safety legislation will improve prospects for profitable business. They intent to consolidate the legislation by April 2015.

General changes

The coalition government is changing:

• The legislative framework protecting workers
• The funding and working practices of the HSE, the watchdog of health and safety
• The way that workplace injuries are reported
• The system of compensation that injured workers use to enforce their rights against negligent employers

Since preparing the report, Professor Lofstedt has expressed concern about the extent to which his Report is being ‘misused’ for political purposes. He has emphasised that his Report did not call for significant changes to regulatory policy, or recognise the ‘compensation culture’ that government ministers regularly condemn.

Notwithstanding this, the report has been used as an endorsement of the government programme of 'reforms' aimed at "reclaiming the reputation of health and safety".

The Government proposes the abolition of large numbers of health and safety regulations. The Government’s intention is that health and safety regulations will be reduced by a third rising to over a half over the next three years.

The initial consultation proposed the revocation of seven statutory instruments, which were identified as being redundant, or overtaken by up-to-date legislation. They were:

• The Anthrax Prevention Order 1971 etc (Revocation) Regulations 2005
• The Employment Medical Advisory Service (Factories Act Orders etc Amendment) Order 1973
• The Health and Safety (Foundries etc) (Metrication) Regulations 1981
• Non-ferrous Metals (Melting and Founding) Regulations 1962
• Pottery (Health and Welfare) Special Regulations 1950
• Pottery (Health etc) (Metrication) Regulations 1982
• Regulations for use of locomotives and wagons on lines and sidings in or used in connection with premises under the Factory and Workshop Act 1901 (1906) (1906 No.679)

More recently as part of these reforms the Government and Vince Cable have introduced legislation to ensure that businesses will only be held liable for civil damages in health and safety cases if they can be shown to have acted negligently.

The Health and Safety at Work Act currently imposes civil liability for breaches of statutory duty in relation to health and safety regulations regardless of whether a business did anything to cause the breach or acted negligently.

Removing s47 of the Health and Safety at Work Act 1974 will effectively remove the 114 year old right of an employee to rely on a breach of health and safety legislation in any claim for personal injury.

What is the current status of the changes?

The amendments to s47 have been published ahead of the Bill’s report stage and third reading in the House of Commons, which will take place on 16 and 17 October.

Is there a case for change?

The Government may have declared intention is to free up business from the stranglehold of needless health and safety red tape. However there is little evidence that business is drowning in ineffective or pointless regulation.

On the contrary, the Lofstedt report itself states that health and safety regulations are broadly accepted to have been an important contributory factor in safer workplaces with the evidence showing that legislation is the primary driver for organisations to initiate changes to improve management of health and safety.

The EU statistical authority, Eurostat, reveals that the fatal injury rate for Great Britain is consistently one of the lowest in Europe, and has been the lowest amongst the five largest EU countries for a six-year period.

There is no objective evidence of the financial effect of health and safety legislation. As Mr David Anderson (Blaydon) (Lab) put it in yesterday'’s debate in the House:

Unsurprisingly it seems that it is accidents and ill health that cost businesses and not a preoccupation with health and safety. The Institution of Occupational Safety and Health says work-related accidents and ill health cost businesses nearly £8 billion a year, with absenteeism, low productivity and legal bills among the 'financial hits'.

Government approval of the idea that health and safety assessment has been getting in the way of business is the wrong message to be sending out a time when businesses are cutting back to deal with the financial effects of the recession. A recent survey of 600 heath and safety professionals found that the economic climate has already taken its toll on the safety sector, with 41% of respondents seeing their budget cut this year and nearly half (45%) claiming their company did not see health and safety as "business critical" during a recession.

The fact is that if health and safety for employees suffers the so too do the profits of healthy businesses. Health and Safety is neglected to the peril of us all.

The Institute of Employment Rights will provide news and expert critique of these important and damaging proposals as the debate continues.

Support the IER and receive free employment law publications and reduced entrance fees to our employment law seminars and conferences by subscribing to the IER.