16 December 2012

Summary of a briefing by Charlie Woodhouse

A new IER briefing has been released with further information and analysis on the proposed amendment of Section 47 of the Health and Safety at Work Act 1974, which will result in the removal of employers' strict liability for their workers' health and safety at work.

Barrister at Old Square Chambers Charlie Woodhouse has written a new briefing regarding the insertion of Clause 14 into the Enterprise and Regulatory Reform Bill at the eleventh hour, resulting in the amendment to Section 47 going to the Lords before it had been discussed in parliament and without public consultation.

We have previously blogged about this matter here.

Some new implications of the reversal of (s)47 have come to light following Charlie Woodhouse's report. In order to keep our subscribers updated on this serious issue, we have listed he raises and that we have not yet discussed below. His full briefing is also available here.

Should the amendment be passed into law:

1. The burden of proving the employer's negligence in terms of health and safety it will fall to the worker rather than the employer to come up with necessary evidence.

   As Woodhouse points out: "The employee is at a serious evidential disadvantage in claims against their employers. The workplace, system of work and work equipment are outside their control; they cannot know whether they are the most appropriate or suitable or whether they have been adequately maintained or replaced sufficiently regularly. For an employee to prove failings in any of these regards is extremely difficult, necessitating either co-operation (amounting to an admission) by their employer or the obtaining of expert engineering evidence. This will lead to a increase in the cost and difficulty of these claims. In cases where the employer repairs or disposes of equipment or paperwork it will be impossible to gather the necessary evidence – this will give rise to the obviously unjust situation that an unscrupulous employer could dispose of evidence to avoid liability".

2. The cost of accidents at work will be shifted to the taxpayer rather than insurance companies, potentially providing the Coalition political gain at the cost of workers' health.

3. It may become easier to obtain a criminal conviction against a negligent employer than it is for the worker and their family to receive compensation for their losses.

4. A "currently very settled area of law" will become unsettled. There has been very little court of appeal activity in employers’ liability law for the last few years. An entirely new bank of case law will have to be developed over the next decade to establish the scope of an employer’s common law duties and to add detail to those duties," Woodhouse writes.

Click here to read the full briefing

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