Cutting red tape or cutting corners

The introduction of new rules regarding injuries at work mean that as of 1st October 2013, any employee injured at work will now have to fight harder to prove that their employer was at fault.  Dan Thompson, Personal Injury Partner, explains what the new rules mean to employees, and questions how some employers may now act when it comes to health and safety.

The new rules brought in on 1st October 2013, which are within Section 69 of the Enterprise and Regulatory Reform Act, state that there is now no civil liability on the part of the employer, or in other words, the employer is not liable in a civil court if an employee injures themselves in the workplace, as a result of a breach of statutory duty under regulations that flow from the Health and Safety at Work Act 1974. The change is a significant one that actually puts back the clock on workers protection under statutory duty to the time when Queen Victoria was on the thrown, which is when the statutory duties were introduced for Health and Safety in the workplace.

“As an example, Regulation 6 part of the Workplace (Health, Safety and Welfare) Regulations 1992 requires that a workplace must be well ventilated by fresh or purified air,” begins Dan.   “If a worker, cleaning in a poorly ventilated workplace, becomes overcome by fumes and collapses, consequently suffering a head injury, prior to the 1st October 2013 they would have won a claim as the employer was in breach of Regulation 6 without having to prove anything else.  Now they would have to prove (and obtain evidence to show) that the workplace was poorly ventilated as a result of negligence, resulting in their injury, and could not just rely on the breach of the regulation. It can be very difficult for a seriously injured claimant to find that evidence as they are not in control of the workplace and do not have access to the witnesses that could help them.

“The purpose of Section 69 was said to be to cut red tape and help support smaller businesses, and so many may think that this change is a positive move and will cut the number of unjustified compensation claims.  Of course, any sensible and reasonable employer, of which we would hope the majority of employers are, will want to protect their employees and so continue to comply fully with the Health and Safety at Work Act 1974 and the regulations that flow from it. In fact they are still required to comply with those regulations but would only face a potential criminal liability for a breach, no longer any civil liability.  Our concern is that there is now no pressure for unscrupulous employers to comply and some may cut corners to save money on health and safety as they won’t be found at fault in an injury claim.  What these employers need to remember is that if an employee is injured, just because they may not be liable for a compensation payment, this doesn’t mean they won’t be affected financially and their businesses productivity will be reduced with staff absence.”

While the regulations seem straight forward, not all employers are necessarily free of civil liability for breach of a statutory duty.  Dan explains, “We exist in a 2 tier system when it comes to laws and regulations; at the top tier is European law and each country within the EU enacts their version in their country.  If an employee works for an emanation of the state, they may still able to claim for a breach under the original European law which still states that there is civil liability on the part of the employer for breach of a statutory duty.  Therefore any person working for the government, NHS, civil service, forces or the emergency services may still be able to claim that their injury was caused by a breach of statutory duty on the part of the employer.  This does create some imbalance between public and private sector organisations, for example, if a nurse working in a private hospital is injured as a result of faulty work equipment they wouldn’t be able to claim under the breach of statutory duty rules and would have to prove negligence, but the same nurse working in an NHS hospital, injured in exactly the same way, would be able to.”

If you have had an accident at work that wasn’t your fault, contact Dan or the Personal Injury team on 0800 91 92 30 or visit the Injury section of our website here to find out how you can start to rebuild your life today.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.