Employers' liability reform and the law of unintended consequences

When section 69 of ?the Enterprise and Regulatory Reform Act comes into force on ?1 October 2013, people injured or killed in the course of their employment will be unable to establish civil liability purely on the basis of health and safety regulatory breaches.

The government's intention is that claimants will have to return to using the common law and prove their employer has been negligent, otherwise their claim will fail.

On closer scrutiny however there may be little effect from this change to the law. But ?more worryingly the government's attitude could encourage employers to be complacent, at worse reversing recent trends in the reduction of workplace fatalities.

'Legislative burdens'

Part 5 of the Enterprise and Regulatory Reform Act, unwisely entitled "Reduction of legislative burdens", contains the provision changing the law on civil liability. A breach of the regulations will still be a criminal offence though under section 33(1)(c) of the Health and Safety at Work etc ?Act 1974, so to suggest that employers ought to feel unburdened in any way is disingenuous of the government. In addition, claimants ought to be able to rely on regulatory breaches as evidence of negligence in any event. After all a breach of the Highway Code, although not usually a criminal offence, is frequently key to founding a claim in negligence. Why should it not be so for regulatory breaches?

In Lochgelly Iron & Coal Co Ltd v M'Mullan [1934] AC 1 Lord Atkin set out an important principle which will remain binding on the courts after October: "All that is necessary to show is a duty to take care to avoid injuring; and if the particular care to be taken is prescribed by statute, and the duty to the injured person to take care is likewise imposed by statute, and the breach is proved, all the essentials of negligence are present. I cannot think that the true position is, as appears to be suggested, that in such cases negligence only exists where the tribunal of fact agrees with the Legislature that the precaution is one that ought to be taken. The very object of the legislation is to put that particular precaution beyond controversy."

Regulatory breaches will still be pleaded from October, but claimants will also seek to bolster their claims with additional allegations, some of which seldom before required much attention. For instance, where employers are emanations of the state no doubt we shall see a renewed reliance on the EC Directives, and where faulty work equipment causes injury the Employers' Liability (Defective Equipment) Act 1969 will often be an adequate replacement for regulation 5 ?of the Provision and Use of ?Work Equipment Regulations 1998 regarding efficient ?work equipment.

More complicated journey

It seems apparent therefore that the legislative burden on employers has not been reduced; the government's reforms simply serve to complicate the journey to establishing liability.

My overriding concern though is that any employer complacency could reverse the trend in workplace fatalities. Far from relieving some of the burden, a relaxing of attitudes towards health and safety may necessitate more charges of corporate manslaughter, or even individual custodial sentences for gross negligence manslaughter.

Seeing only three convictions in the last five years, the Corporate Manslaughter ?and Corporate Homicide Act 2007 has been a great disappointment.

The penalties are in reality little more than a fine after the ambit of the Act was dramatically limited on its passage through parliament. It takes so long to investigate these cases that companies invariably dissolve, so even though the court has the power to order a business to carry a notification of any conviction on its letterhead no company remains to sanction.

A greater emphasis on prosecuting for gross negligence manslaughter is likely to be the consequence, and in the meantime we must hope the right message gets through to employers before the shattering effect of a workplace fatality or custodial sentence is felt by the families of employees and employers alike. SJ

Ben Posford is a partner and ?head of catastrophic injury at Osbornes Solicitors LLP?